The Malaysian Bar’s International Malaysia Law Conference (“IMLC”) 2026 took place from 27 to 30 Oct 2026 at MITEC, Kuala Lumpur.
By Sangitha Namasoo, S V Namasoo & Co
The moderator for this session was Abraham Au Tian Hui, Partner at G S Nijar & Associates, who opened the session by explaining that the discussion would centre around the extinguishment of the human element from Government decision-making processes and how this would be balanced against important administrative law principles that have been embedded in legal jurisprudence. The moderator then introduced the three panellists.
The first speaker was Datuk Brenndon Keith Soh, Sabah State Attorney General, who spoke about Sabah’s perspectives on the topic. He informed the audience that the Sabah Government intends to become a smart Government and therefore relevant policy decisions need to be made in order for the system to make decisions on matters concerning the public. The main legal question is how to ensure this power is used lawfully and fairly.
Automated Decision-Making (“ADM”) is where decisions are made without human involvement, wholly or partly. With regard to the Government, this means that technology will do the tasks Government officers used to do. He explained that administrative law sits in the middle of efficiency and individual rights, and how delivering wrong decisions fast can cause problems. In these situations, judicial review would act as the safety net for the public. He expressed the view that ADM suits situations in which the machine makes decisions based on fixed criteria. However, it is unsuitable where discretion needs to be exercised.
In accordance with the principles of natural justice and the Government’s accountability, the public must know the case against them and the authorities should be able to explain the role the system played in making the decision. In any event, power should remain with the authorities even when it is exercised by a machine.
Datuk Brenndon also compared how ADM is exercised in other jurisdictions, including Canada, where the system is divided into four impact levels — with safeguards stronger the higher the decision's impact. He also explained the position in Finland where an enabling law is the legal basis for automated decisions and where requests for review cannot be automated.
He concluded with several recommendations for Sabah to adopt when implementing the system, including starting with a rule-based ADM.
The second speaker, Steven Rares KC, Former Judge of the Federal Court of Australia, addressed this topic from the Australian perspective. He explained that where there are high volumes of people wanting administrative decisions made by already overwhelmed Governments, there is a need for a system to provide these decisions, albeit with a human safeguard.
As the legislation requires that decisions be supported by reasons, he explained that an algorithm will produce reasons to justify its decisions. However, he cautioned that there is no actual rationalisation done to have come to that conclusion because algorithms, however intelligently trained, cannot reason. Rather, they have a set of predictive or pre-programmed responses to adopt and produce.
He also raised the question of what the court will consider to determine if the decision is reviewable and whether the discretion has been properly exercised. In judicial review cases, the courts could set the decision aside if the decision appears unreasonable. However, it is difficult to determine this with ADM, as the court would not know how the algorithm has been programmed. This would make it difficult for the courts to decide on judicial review applications, and he concluded by saying there may be a need to redevelop judicial review principles.
Andrew Butler KC of Thorndon Chambers in Wellington, New Zealand, then questioned the premise of whether these decisions can be automated at all or whether they must be made by humans. He believes that it is important for there to be a level of agreement that some decisions are just so important and evaluative in nature that the legitimacy of the decision requires a human to be involved. This is because legitimacy is important in a democratic society and efficiency cannot override legitimacy.
He went on to speak about how everybody has a right to reasons under New Zealand law, as it is the first step to determine whether the reasons are good enough. He cautioned against stretching administrative law principles to perform a function they were never meant to do, and concluded by saying that we should anchor ourselves in fundamental principles in adopting legislation or quasi-legislation and reinforce the role of judicial review with regard to these principles, as well as to never depart from constitutional principles.
The key takeaway from this session is that there is value in decisions being made quickly by ADM. However, there should be established clear legal principles, statutory authorisation, transparency, appropriate human oversight and accessible avenues of review. Every ADM should remain attributable to a public authority and to judicial scrutiny. Legitimacy is a core value and will be fundamental to the deployment of ADM.
*This article reports on Breakout Session 11, Stream A: Law and Society.