The Citizen and the Automated State: Exploring the Implications of Algorithmic Decision-making in the New Zealand Public Sector

<p>Algorithms increasingly influence how the state treats its citizens. This thesis examines how the New Zealand public sector’s use of algorithms in decision-making brings benefits, but also invites risks of discrimination, bias, intrusion into privacy and unfair decision-making. This thesis’s central conclusion is that these risks require a new response. New Zealand currently has a patchwork of existing protections which provide some deterrent against poor algorithmic decision-making. The Privacy Act 1993, Official Information Act 1982, New Zealand Bill of Rights Act 1990, Human Rights Act 1993 and applicable administrative law principles can provide remedies and correct agencies’ poor behaviour in certain cases. But important gaps remain. This thesis examines these protections to show that they do not adequately stem cumulative and systemic harms, and suffer from important practical drawbacks. They do not provide the sound preventative framework that is needed; that is, one which ensures good public sector practice. This thesis proposes a new regulatory model for public sector use of algorithms. It argues that a key element of any effective regulatory response is the use of “algorithmic impact assessments”. These assessments would mitigate potential risks, and legitimise proportionate public sector use, of algorithms. It is also proposed that an independent regulator complements these assessments by issuing guidance, undertaking algorithm audits, and ensuring political accountability through annual reporting to Parliament. Agencies would have new obligations to disclose how and when algorithms are used in decision-making. Meanwhile, citizens would gain an enhanced right to reasons for algorithmic decisions affecting them and a right to human review. Together these measures would establish a model which would safeguard responsible and effective use of algorithms in New Zealand’s public sector.</p>

The Citizen and the Automated State: Exploring the Implications of Algorithmic Decision-making in the New Zealand Public Sector

<p>Algorithms increasingly influence how the state treats its citizens. This thesis examines how the New Zealand public sector’s use of algorithms in decision-making brings benefits, but also invites risks of discrimination, bias, intrusion into privacy and unfair decision-making. This thesis’s central conclusion is that these risks require a new response. New Zealand currently has a patchwork of existing protections which provide some deterrent against poor algorithmic decision-making. The Privacy Act 1993, Official Information Act 1982, New Zealand Bill of Rights Act 1990, Human Rights Act 1993 and applicable administrative law principles can provide remedies and correct agencies’ poor behaviour in certain cases. But important gaps remain. This thesis examines these protections to show that they do not adequately stem cumulative and systemic harms, and suffer from important practical drawbacks. They do not provide the sound preventative framework that is needed; that is, one which ensures good public sector practice. This thesis proposes a new regulatory model for public sector use of algorithms. It argues that a key element of any effective regulatory response is the use of “algorithmic impact assessments”. These assessments would mitigate potential risks, and legitimise proportionate public sector use, of algorithms. It is also proposed that an independent regulator complements these assessments by issuing guidance, undertaking algorithm audits, and ensuring political accountability through annual reporting to Parliament. Agencies would have new obligations to disclose how and when algorithms are used in decision-making. Meanwhile, citizens would gain an enhanced right to reasons for algorithmic decisions affecting them and a right to human review. Together these measures would establish a model which would safeguard responsible and effective use of algorithms in New Zealand’s public sector.</p>

Interview: Nuno Ferreira

The idea of European values has never played a central role in my research. Being a socio-legal scholar focused on human rights issues in the European context, I have always referred more specifically to particular legal rights, especially in relation to children’s rights, refugee rights and various aspects of the right to equality. Yet rights are inextricably linked to values: European societies like to see themselves as cherishing a catalogue of human rights that is central to their identity and every European country has some sort of bill of rights or text of a constitutional nature that contains various fundamental rights. In that sense, my work is also about values: the value of human dignity, of religious freedom, of equality, and so on.I would have immense difficulties defining European values. I suspect one would get as many different answers as different people asked this question. I would like to think that amongst such European values we can include democracy, equality, human dignity, and so on. But that does not mean these values are only, mainly or particularly European in any sense, as many countries and societies around the world also cherish and share such values. There is nothing intrinsically European about these values, and even history can show this, despite pervasive narratives that try to convince us otherwise. Instead, what matters is that these are values that we espouse and protect.European values inevitably have a personal value – in my particular case for several particular reasons. Having been born and grown up in Portugal, where democracy was only re-conquered in the 1970s and slowly solidified in the 1980s, cherishing the right to vote and freedom of speech was always crucial in my mind. And being gay has meant that I was always acutely aware of the importance of equality and the fight against discrimination, not only on grounds of sexual orientation, but on grounds of all other personal characteristics. Moreover, having had the privilege of taking part in several student exchange programmes and being yet another member of the ‘Erasmus generation’, I value immensely the right to education, the right to free movement, intercultural communication and respect for minorities. Despite the limits of cultural relativism and the need to hold on to human rights standards, we need to strive for much better knowledge and understanding of cultural differences.

Compensation for Wrongful Conviction/Miscarriage of Justice in Hong Kong in Light of A v Secretary for Justice and Another [2020] hkcfi 427; hcal 176/2018 (11 March 2020)

Article 14(6) of the International Covenant on Civil and Political Rights (iccpr) provides for the right to compensation for wrongful conviction or miscarriage of justice. In Hong Kong, there are two compensation schemes for people who have been wrongfully convicted – the statutory scheme under Article 11(5) of the Bill of Rights Ordinance and the ex gratia scheme (also applicable to wrongful imprisonment). Although there are cases in which Hong Kong courts have dealt with the right to compensation under the ex gratia scheme, it was only in March 2020, in A v Secretary for Justice and Another, that the High Court, for the first time, dealt with a case on the right to compensation under Article 11(5). In this article, the author discusses the right to compensation for wrongful conviction in Hong Kong generally and in particular under Article 11(5) of the Bill of Rights Ordinance. The author deals with the case of A v Secretary for Justice and Another and illustrates how the High Court’s interpretation of Article 11(5) of the Bill of Rights Ordinance is likely to impact on the right to compensation for wrongful conviction in Hong Kong in the future.

Collaboration in the process of legislative lobbying: A study of a disabled peoples organisation lobbying for change in New Zealand 1989-1993

<p>This thesis examines lobbying from the disabled people’s organisation Disabled Persons Assembly (DPA) NZ from 1989 until 1993. It explores how the organisation conducted lobbying activities with respect to two pieces of New Zealand legislation with constitutional significance: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. This thesis places the plight of minority groups within the political process squarely under the research microscope and asks: what factors explain the different outcomes to the DPA’s lobbying efforts to the Bill of Rights in 1990 and the Human Rights Act in 1993? More specifically it examines the DPA’s decision to collaborate with the New Zealand Aids Foundation (AF) during the 1993 Human Rights Act campaign. Collaboration with the AF was a controversial decision that resulted in heated discussions within DPA. Some members were concerned about the political risks of aligning with the AF. DPA leadership however saw a possibility for broad human rights legislation, and took the decision to collaborate. They were convinced that collaboration would bring benefits in the form of greater resources, access to Parliament and better relationships with the media which would all lead to an enhanced capacity to make the case to the public. The thesis argues that by working with the AF, DPA was able to change its lobbying narrative from one solely focussed upon disability rights to one that broadened out to broader human rights protections. DPA was not positioning itself as a minority group arguing for narrow exceptions to existing legislation, a tactic it had pursued in previous campaigns. The campaign proved successful, gaining support from MP’s, as the Human Rights Act was perceived to have public support. The thesis also shows that to understand DPA’s successful strategy it needs to be seen in the context of a failed effort from a previous campaign. DPA’s campaign to lobby for the 1993 Human Rights Act began from the point of an unsuccessful fight to have disability rights included in the 1990 Bill of Rights. DPA was, in effect, ‘locked in’ to fighting the 1993 campaign from that point.</p>

Collaboration in the process of legislative lobbying: A study of a disabled peoples organisation lobbying for change in New Zealand 1989-1993

<p>This thesis examines lobbying from the disabled people’s organisation Disabled Persons Assembly (DPA) NZ from 1989 until 1993. It explores how the organisation conducted lobbying activities with respect to two pieces of New Zealand legislation with constitutional significance: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. This thesis places the plight of minority groups within the political process squarely under the research microscope and asks: what factors explain the different outcomes to the DPA’s lobbying efforts to the Bill of Rights in 1990 and the Human Rights Act in 1993? More specifically it examines the DPA’s decision to collaborate with the New Zealand Aids Foundation (AF) during the 1993 Human Rights Act campaign. Collaboration with the AF was a controversial decision that resulted in heated discussions within DPA. Some members were concerned about the political risks of aligning with the AF. DPA leadership however saw a possibility for broad human rights legislation, and took the decision to collaborate. They were convinced that collaboration would bring benefits in the form of greater resources, access to Parliament and better relationships with the media which would all lead to an enhanced capacity to make the case to the public. The thesis argues that by working with the AF, DPA was able to change its lobbying narrative from one solely focussed upon disability rights to one that broadened out to broader human rights protections. DPA was not positioning itself as a minority group arguing for narrow exceptions to existing legislation, a tactic it had pursued in previous campaigns. The campaign proved successful, gaining support from MP’s, as the Human Rights Act was perceived to have public support. The thesis also shows that to understand DPA’s successful strategy it needs to be seen in the context of a failed effort from a previous campaign. DPA’s campaign to lobby for the 1993 Human Rights Act began from the point of an unsuccessful fight to have disability rights included in the 1990 Bill of Rights. DPA was, in effect, ‘locked in’ to fighting the 1993 campaign from that point.</p>

The Right to Language and its Contemporary Significance for New Zealand

<p>The right of linguistic minorities to speak their own language in community with other members of their group (the right to language) is deserving of specific attention for two reasons. Firstly, language is the currency of communication and one of the key indicia of cultural identity; and secondly, ensuring minorities have a secure place within a State is pivotal to promoting peace and stability within a nation. There are three sources of the right to language in New Zealand : the International Covenant on Civil and Political rights, the New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi (for the Maori and Moriori languages). The right to language protects against both direct action by the State to limit linguistic minorities' use of their language. and State neglect of a minority language. This paper explores the right to language in the New Zealand context including the sources and elements of the right to language; the application of the right to the Maori language (and what lessons can be learned from this experience for the Moriori language); and two modes of revitalisation of minority languages: official recognition and television broadcasting. The paper observes that while the steps to improve language acquisition and use of the Maori language are admirable and need to continue to secure a meaningful place for that language in New Zealand, the Moriori language is in serious jeopardy and in need of urgent attention. Finally, the paper examines whether the principles of the Treaty of Waitangi may provide sound guidance for the consideration of the place of minority languages in policy and law making in New Zealand.</p>

The Right to Language and its Contemporary Significance for New Zealand

<p>The right of linguistic minorities to speak their own language in community with other members of their group (the right to language) is deserving of specific attention for two reasons. Firstly, language is the currency of communication and one of the key indicia of cultural identity; and secondly, ensuring minorities have a secure place within a State is pivotal to promoting peace and stability within a nation. There are three sources of the right to language in New Zealand : the International Covenant on Civil and Political rights, the New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi (for the Maori and Moriori languages). The right to language protects against both direct action by the State to limit linguistic minorities' use of their language. and State neglect of a minority language. This paper explores the right to language in the New Zealand context including the sources and elements of the right to language; the application of the right to the Maori language (and what lessons can be learned from this experience for the Moriori language); and two modes of revitalisation of minority languages: official recognition and television broadcasting. The paper observes that while the steps to improve language acquisition and use of the Maori language are admirable and need to continue to secure a meaningful place for that language in New Zealand, the Moriori language is in serious jeopardy and in need of urgent attention. Finally, the paper examines whether the principles of the Treaty of Waitangi may provide sound guidance for the consideration of the place of minority languages in policy and law making in New Zealand.</p>