Retrofitters, pragmatists and activists: Public interest litigation for accountable automated decision-making

Henry L Fraser, Zahra Stardust

Abstract: This paper examines the role of public interest litigation in promoting accountability for AI and automated decision-making (ADM) in Australia. Since ADM regulation faces geopolitical headwinds, effective governance will have to rely at least in part on the enforcement of existing laws. Drawing on interviews with Australian public interest litigators, technology policy activists, and technology law scholars, the paper positions public interest litigation as part of a larger ecosystem for transparency, accountability and justice with respect to ADM. It builds on one participant's characterisation of litigation about ADM as an exercise in legal retrofitting: adapting old laws to new circumstances. The paper's primary contribution is to aggregate, organise and present original insights on pragmatic strategies and tactics for effective public interest litigation about ADM. Naturally, it also contends with the limits of these strategies, and of the Australian legal system. Where limits are, however, capable of being overcome, the paper presents findings on urgent needs: the enabling institutional arrangements without which effective litigation and accountability will falter. The paper is relevant to law and technology scholars; individuals and groups harmed by ADM; public interest litigators and technology lawyers; civil society and advocacy organisations; and policymakers.