Abstract
COMBATTING THE CODE: Regulating Automated Government Decision-Making in Comparative Context
Governments continue to grapple with how to effectively use artificial intelligence (AI) and automation to assist in administrative decision-making, particularly high-volume decision-making. Yet its use has caused harm – particularly to vulnerable populations – and major scandals. How did this occur in Western liberal democracies, despite their well-developed systems of checks and balances? Are their legal frameworks suitable to accommodate the use of AI and automated decision-making by governments? These are among the key questions that Yee-Fui Ng carefully examines in her book Combatting the Code: Regulating Automated Government Decision-Making in Comparative Context. Ng focuses on the United States, United Kingdom (UK) and Australia, using them as a comparative lens to explore how automated decision-making in government is currently regulated and ought to be regulated. The book analyses the legal, political and managerial controls that are needed to prevent large-scale disasters from occurring in automated government decision-making.
Public law practitioners may be most interested in the legal controls Ng considers: judicial review for individual redress and rationality of automated government decisions; anti-discrimination laws for challenging biased inputs; public sector privacy laws; and freedom of information (FOI) legislation. Ng notes that the three countries are of comparative interest as Western liberal democracies and because they vary in their constitutional systems and how they protect human rights.
Ng contends that the legal system should recognise automated decision-making so that judicial review can be effective even if a machine, rather than a human, makes the decision. It is suggested that this can be achieved through legislative deeming provisions, as already exist in Australia and the UK. Moreover, Ng explores why anti-discrimination laws have not been used to challenge automated decision-making in Australia. She notes, among other things, that it would be difficult to prove direct and indirect discrimination based on biased or discriminatory inputs that have been fed into an AI or automated system. Ng therefore posits that new conceptions of discrimination may need to be considered by lawmakers.
On privacy, Ng argues that the UK’s public sector privacy and data protection laws have been the most effective among the three jurisdictions. Article 22 of the General Data Protection Regulation (GDPR) explicitly provides rights relating to automated decision-making. Unless specified exemptions apply, it prohibits the use of solely automated processing for decisions that produce legal or other significant effects for individuals. Ng observes that FOI requests for government algorithms used to inform administrative decision-making have been denied, in all three jurisdictions, on the basis of exemptions that can be claimed for commercial-in-confidence material or trade secrets. She therefore argues that FOI legislation should include proactive disclosure requirements for information about automated decision-making technologies used to make an administrative decision.
While AI continues to dominate the public discourse, there is no consensus on how, or if, government should legislate on its use. The cross-jurisdictional analysis is indeed one of the book’s key strengths, and helps readers identify strengths and gaps in Australia’s legal system. It may also give readers pause to consider whether non-binding policy alone – as has already been issued by the federal government in Australia – will be sufficient to regulate the use of AI and automated technologies by the government and public sector. Policy makers will also benefit from the book’s sections on political controls (which cover how oversight bodies such as parliamentary committees, ombudsmen and auditors may oversee AI use by governments) and managerial controls (which focus on the internal controls within agencies to regulate their AI decision-making). While the book is mostly academic in tone, Ng’s description of some of the scandals in the three jurisdictions tell the compelling story of why AI and automated decision-making by governments must be appropriately regulated. The book was thoroughly researched and a pleasure to read – indeed, it could not be timelier.
THE LAST OUTLAWS: The Crimes of Jimmy & Joe Governor and the Birth of Modern Australia
Katherine Biber’s chronicle of the Governor brothers’ conflict with turn of the century European society in NSW is a revelation on many levels. Biber intends her work to peel the skin off colonial and post-colonial culture and to speak about ‘law, politics, science and religion’ (p 7). It does.
Uniquely for a book of this type, Biber has spoken to some of the descendants of the Governors about their motivation. Her work gives voice to some of the efforts to heal the racial rift with non-Aboriginal people too. She opens up the intergenerational trauma of descendants. At the same time, she exposes the state-sanctioned mercilessness of legislating, policing, judicial practices, and punishment regimes.
In late 1900, lethal conflict ruptured the superficial racial calm of the NSW hinterland. Jimmy Governor and his brother Joe were joined by Jack Underwood as they killed five people and injured another at the Mawbey farm. Six sleeping or watchful children survived. The Governors worked for the Mawbeys who were short-changing them on rations, refusing to pay for hard timber-getting and fencing work, and racially demeaning Jimmy Governor’s young white wife, Ethel. Pamela Mawbey spoke to Biber of the ‘intergenerational trauma’ that followed these events.
Days after the Mawbey killings, Jimmy and Joe Governor killed Alex McKay. Biber suggests McKay might have known Jimmy Governor in his previous role as police tracker. I wondered if he was related to the Dr McKay who, with other squatters, ‘gathered, hunted, shot’, ‘warmly’ engaged, and killed a lot of Aboriginal people for raids on his Ovens River run in 1840. (Read further at Docker to Gipps, 31 December 1840, House of Commons 1844 (627) Despatches, no 25 p 107.)
Within a day, the Governor brothers killed Lizzie O’Brien and her infant son and shot, but failed to kill, midwife Catherine Bennett. Biber describes the O’Brien family as now working to heal this wound – their own family recognising the casual racism implicit in relations with the Governors at the time of these killings (p 24). It is the case that O’Brien’s coroner, Bowman, was a member of a wealthy squatting family which, on the money they made from the adverse possession of Aboriginal land, sent all its boys back to the UK for their education and had its own history of involvement in ‘dispersals’ of Aboriginal people.
Biber describes the events that followed the killings, including the bureaucratisation of management and the never-ending Christian fascination with Aboriginal ‘protection’. A reward was offered. The Governors were outlawed.
A monumental man-hunt ensued. Civilians and volunteers, while enthusiastic, were a ‘hindrance’ but it was they who captured Jack Underwood; shot and killed the ‘outlaw’ Joe Governor while he slept; and shot and took Jimmy Governor prisoner.
Readers interested in the legal niceties invoked to punish ‘outlawry’ and in the subsequent judicially sanctioned methods of convicting and sentencing Aboriginal people will find the story chilling. The Bulletin described the clinical institutionalisation of punishment as unfolding with the ‘passionless activity of a machine’ (p 85). Lawyers interested in the operation of the law, of complicity and the conduct of inquests and trials, will find much to interrogate.
The imbalance of power relations is never far from the surface across the whole narrative as Biber unpacks the perspective of the powerful about the ‘emergency’ and assertions as to the ‘powerless’, ‘demoralised’, and poorly resourced police force. The Governors were conceived as ‘trained athletes’, ‘splendid shots’ and ‘expert bushmen’ (p 39). Myth-making overtook reality: the Governors walked for miles along fence wires.
Biber takes us to the arbitrary punishment, including official hostage-taking, of the Governors’ people, reflecting the state sanctioned ‘containment’ that took place across decades. Astonishingly the Vagrancy Act was used to suppress the potential ‘uprising’ (p 50). Two Governor brothers were gaoled as a ‘precaution’ (p 42) and other members of the Wollar Aboriginal community were confined for six weeks in a civic hall (p 49).
Events unfold with a certain inevitability.
Ethel was taken into custody immediately.
Jack Underwood was captured by a farmer (pp 45–7), convicted and sentenced to death on the conflicted evidence of survivors from the lethal storm at the Mawbey farm (p 54). In a pitiful letter ostensibly drafted at his direction, he made it very clear he knew he was going to hang. Dear Jim [Governor], just a few lines to let you know how I am getting on … I am going to be hanged and I hope you won’t be caught … if they catch you will hang like me. Jim don’t be caught … yours truly Jacky Underwood (p 60).
In a persistent theme, Biber reminds us of the landlessness of poor First Nations agricultural workers like the Governors when she invites us to consider the real professional interest of legal personnel involved in Underwood’s case, evidenced by their roles in the (in)famous NSW land theft ‘dummying’ case of Wilson v Minister for Lands (1899) 20 LR (NSW) 104.
Joe, separated from Jimmy, camped in the ‘Dark Corner’ of the Mount Royal Range and was executed by civilians while asleep. Harry Pinchin, bootmaker, Freemason, and coroner sat with 12 local ‘jurors’ in the Caledonia Hotel. Dr Bowman, another of the land takers, provided post mortem evidence and removed Joe’s brain which was studied and ‘lost’ by Professor Wilson and James Froude Flashman. Rumours that Joe’s head was removed have been denied.
Jimmy Governor was shot and captured by civilians. He made incriminating admissions to a constable Stone who gave that evidence without objection. A youthful and inexperienced barrister was appointed to represent him at trial. His wife gave prosecution evidence. From the dock, Jimmy Governor complained about the Mawbeys’ demeaning treatment of his wife. Provocation was put unsuccessfully. Convicted, sentenced to hang, an appeal to a conflicted bench was unsuccessful. Awaiting his death, he sang ‘native songs’ (p 224). A death mask is held in the NSW Museum.
Biber grapples with the question: how did Jimmy Governor lurch from ‘smart, hardworking, sober and strong’ and (even) a police tracker, to a killer of this magnitude?
Race and racism? Land theft? As whites planned the federation ceremony, the Governor men were acutely aware they were surrounded by land takers with more comfortable lives. Proud, hardworking men they were labourers on their own country working to enclose it for whites. In a shocking irony, fence posts required by the Mawbeys were rejected for poor workmanship. Aunty Loretta Parsley produced one to Biber.
MY LIFE IN CRIME: A Tapestry of Cases
In My Life in Crime: A Tapestry of Cases, John McKechnie offers a compelling and complex story that is part memoir, part foray into some absurdities in Australian case law. The reader is taken on a journey through McKechnie’s career in the West Australian legal system, first as a barrister, then prosecutor, a Supreme Court justice, and finally, as Commissioner for the Western Australian Corruption and Crime Commission. Early in the book, McKechnie recounts high-profile and influential criminal cases in Western Australia, and later (in Part Five), he offers a collection of historical oddities, unexpected outcomes, and at times strange stories that he labels ‘quirky cases.’
McKechnie’s dedication to the development of the Western Australian legal system is evident. What is perhaps more apparent in this memoir though, is McKechnie’s abiding love of stories – those that encompass the best, worst, and at times humorous examples of human behaviour. This attentiveness to the human condition seems to have been a feature of McKechnie’s early curiosity in the captivating tales of Enid Blyton and JRR Tolkien, one that likely culminated in his later choice to study law over medicine, preferring the prospect of listening to stories, rather than ‘memorising the scientific names for the parts of a body’.
McKechnie engages in a reflection on difficult and at times controversial subjects – including the decriminalisation of abortion, the pervasive scourge of intimate partner violence, and even the abolition of the death penalty – with compassion and an ability to consider differing perspectives that is admirable (no doubt a trait honed by his time spent as a Supreme Court Justice). The thorough engagement with these topics demonstrates McKechnie’s ability to consistently engage with the law, even as societal views evolve.
The highlight of this memoir-turned-non-fiction-renaissance through Australian legal history undoubtedly rests in the latter half of the book – Parts Three, Four and Five – and the tapestry of cases that shaped McKechnie’s career and appealed to his intrigue of the ‘rich canvas of human endeavour’. McKechnie recounts his role in the Rothwells Bank collapse that resulted in the prosecution of infamous businessman Alan Bond (Bond v The Queen [1992] WASC 342), the homicide cases that advanced the removal of the distinction between ‘wilful murder’ and ‘murder’ in Western Australia (the Criminal Law Amendment (Homicide) Act 2008 (WA)), and even details how the hardware store entrepreneur Charles Bunning ended up at the centre of Australia’s leading case on illegally obtained evidence (see Bunning v Cross [1978] HCA 22).
McKechnie does, though, seem to have had a relatively rigid approach as a legal practitioner, embodied by his philosophy that prosecutors ‘fight cases, not causes’ (albeit inherited from another senior lawyer). McKechnie’s insistence on this strict separation is particularly evident while recounting his decision as prosecutor to pursue (and later discontinue) charges against two doctors who performed a medical termination. The charges were the first of their kind in over 30 years, at a time when many would be forgiven for thinking the law in this area was effectively settled. The charges reignited public debate on the morality and legality of abortion and resulted in medical professionals refusing to perform the procedure, fearful of criminal implications, and at least two women were admitted to hospital with serious complications from self-performed abortions (notably excluded from McKechnie’s account). For further reading, see Natasha Cica, ‘Legal Studies: Ordering the Law on Abortion in Australia’s “Wild West”’ (1998) 23(2) Alternative Law Journal 89.
This strict adherence to legal binaries is perhaps a shield against criticism for (undoubtedly difficult) decisions made during his prosecutorial career. The role of prosecutor is to ensure it is in the public interest to pursue charges and many legal advocates do indeed fight causes within the constraints of the law. One can’t help but think of the current re-invigoration of the abortion debate in the United States following the US Supreme Court’s decision in Dobbs (Dobbs v Jackson Women’s Health Organization, 597 US 215 (2022)) – and, in the years since, several district attorneys and prosecutors have used their discretion to decline pursuing charges against medical practitioners.
Ultimately, while this memoir will undoubtedly be of interest to Australian legal professionals and scholars alike, those unfamiliar with the intricacies of the law need not be dissuaded. McKechnie uses clear and simple prose to describe the legal proceedings that shaped his career, and the broader social and historical context they sit within (with a few omissions). And where he does descend into a Latin maxim or two, these are helpfully translated in the footnotes.
THE HEART OF THE ADVOCATE
Angela Costi’s The Heart of the Advocate brings law and poetry into dialogue, unsettling the idea of law as a purely mechanical system. Divided into four parts – From the Womb, Adversarial Practice, F(law)ed, and To Salvage Advocacy – the collection reflects on justice not only as institutional process but as embodied, psychological, and social experience. While Costi critiques legal practice for its rigidity and proceduralism, she also insists that advocacy should not be separable from the law, and that justice encompasses ethical and emotional responsibilities.
While Costi has published other poetry collections, this work is situated in the uncomfortable space where law meets lived experience and the tensions of advocacy. As Costi contends, is this not why many enter the law in the first place – to give voice to what and who are silenced, to bridge the gap between institutional process and human life? Her poems confront sexism, racism, class oppression, bureaucratic indifference, and the alienating effects of adversarial processes.
Yet Costi’s poetry is not merely a catalogue of harms. Rather, the collection probes the psychological consequences of such encounters, what psychologists call moral injury, described as the psychic wound that arises when professional duties conflict with ethical commitments. It also addresses systemic harms, including the iatrogenic damage produced by entrenched inequalities within the very processes designed to dismantle them.
For Costi, advocacy extends far beyond the courtroom, woven into cultural, familial and communal life. Reflecting on her Cypriot Greek upbringing, she recalls being informally positioned as an advocate within her family. In this sense, advocacy arises not from legal authority but from Philoxenia (p 10), which Costi explains as an ethic of hospitality and responsibility. Costi consistently argues that justice precedes and exceeds the legal process, positioning it as a moral imperative rather than a procedural outcome.
The collection’s central poem, The Heart of the Advocate, makes this point explicit. Here, Costi critiques legal positivism, declaring that ‘[j]ustice must not be confused with law’ (p 46). While the law delivers verdicts, she argues, justice demands compassion; without it, legal systems risk perpetuating the very harms they claim to repair. As Costi warns, ‘[o]ne doubt can change a truth into a lie’ (p 46), illustrating the precariousness of truth when filtered through positivist legal frameworks. For Costi, authentic advocacy must extend beyond legal procedure to the ethical domain of care and responsibility.
This redefinition of advocacy in court as an ethic of care rather than an expression of authority is a recurrent theme throughout Costi’s poems. In Survivor, for instance, she dissolves the boundary between victim and advocate: The second your father threw your mother/into a bush of thorns … & you held her … gashed and bloody/you were an advocate (p 20).
Costi also insists on recognising persistence as an essential aspect of advocacy, particularly when confronting what she calls institutional indifference. As shown in Dancing on Shards: An Affidavit, the broken cadence of ellipses highlight the delays inherent in bureaucratic processes, ‘… the peer worker gives up … she keeps the file open … waits/knows … she is the only thread her client can hold’ (p 15).
Costi’s collection also rejects the premise of law’s neutrality, contending that it obscures justice while sustaining entrenched structures of power. Through an intersectional lens, she demonstrates how systemic harm is often compounded and intensified by gender, race, class and bureaucracy. In Crossing Over the Myth, she argues that adversarial procedure itself inflicts secondary trauma on those it purports to serve. In this poem, which depicts a sexual assault trial, the witness is reduced to ‘a lamb awaiting another question/to break the bones of her truth’ (p 54). The defence counsel is imagined through figures of Greek myth – Persephone, Cassandra, Leda – each symbolic of violation and enforced silence. Costi thus critiques the courtroom as a site that reproduces patriarchal narratives rather than dismantling them. She leaves readers with a pressing question: how might law respond to, and meaningfully redress, the compounded harms experienced by victims and survivors?
Not all of Costi’s poems, however, are overshadowed by despair. The final section, To Salvage Advocacy, reconceptualises advocacy as a transformative practice, one that can be reoriented towards care and resilience. In particular, the poem Some advocates however, do develop a recognisable style of their own (p 80) reimagines advocacy through the experiences of four women lawyers. The first lawyer represents refusal, rejecting the conventional pathways of litigation to work with First Nations students. Her practice displaces the authority of the courtroom and instead privileges solidarity, listening and relational accountability. The second demonstrates persistence, sustaining advocacy despite systemic exclusions exacerbated by racism, sexism, and client rejection. The third performs translation, unravelling ‘strangled legalese’ for clients confronting debt and eviction, thereby rendering law comprehensible and restoring accessibility to justice. The fourth reframes advocacy through pedagogy, teaching rights in hotlines and rural courts. Here, Costi shows that access to justice extends beyond representation, relying equally on the client’s comprehension and the lawyer’s effective communication of legal knowledge. Collectively, these portraits articulate a jurisprudence of care, while also revealing the profound challenges of sustaining such practices within a resistant legal system.
The Heart of the Advocate is both aesthetically compelling and intellectually urgent. Costi blends lyrical intensity with moral seriousness, making law’s formalism visceral and comprehensible. Her work is a call to conscience. It asks readers, whether lawyer, scholar, social worker or citizen, to confront the failures and possibilities of law, and to embrace an ethic of principled, compassionate advocacy. For those working within the law, the collection acknowledges the contradictions and burdens of the profession but also affirms its potential as a site for justice, care and ethical responsibility. As Costi explains to Neos Kosmos, her poetry aims to ‘walk you from the court’s bench to find a window, where you view the horizon, knowing justice and equity is meant for everyone.’ By bringing law into exchange with advocacy and poetry, she asserts that justice depends on empathy and responsibility, but also on hope for what law might yet become.