Re-Evaluating the Doctrine of Deference in Administrative Law

Published date01 December 2017
Date01 December 2017
Janina Boughey*
It is frequently said that Australian administrative law does not have, and cannot
accommodate, a doctrine of deference. These statements, from judges and
commentators, tend to cite the High Courts decision in Corporation of the City of Enfield
v Development Assessment Commission
as authority. In that case, the High Court of
Australia indicated that Australias strict separation of powers, as manifested by the
legality/merits dist inction, does not allow courts to defer to administrative bodies in
determining the meaning of ambiguous statutory provisions. Since Enfield, there have
been considerable developments in the application, and theorisation, of deference across
the common law world. This article examines developments in the UK and Canada, and
argues that they show that there is no single d octrine of deferencedeference is
applied in administrative law in a range of ways. I argue that some of the ways in which
Canadian and UK courts apply deference are not dissimilar from the principles
Australian courts already apply in reviewing executive action. I argue that Australian
law may benefit from greater attention to, and wider application of, these deferential
principles, in order to curb judicial intrusion into administrative discretion.
Deference has become something of a buzzword in administrative law in recent years.
Of the papers delivered at the Cambridge Univer sity Public Law Conference in
September 2016, for instance, around half discussed th e concept of judicial deference to
administrative bodies in various aspects of their decision- making. The doctrine of
deferenceinsofar as it may be described as a doctrine’—has its origins in US law,
spread to Canada in the late 1970s, and is steadily gaining traction in the UK. The High
Court of Australia rejected the US version of the doctrine of judicial deference to
administrative interpretati ons of la w in Corporation of the City of Enfield v Development
Assessment Commission,
on the basis that it would contravene Australias strict
separation of judicial power. However, since then, the doctrine of deference has
developed considerably in those jurisdictions with m ore similar (though not ide ntical)
* Senior Lecturer, University of New South Wales. My thanks to Lisa Burton Crawford,
Matthew Groves, Caroline Henckels and the journal’s reviewers for their helpful comments,
suggestions and discussions.
(2000) 199 CLR 135.
(2000) 199 CLR 135, 1534 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ) (Enfield).
598 Federal Law Review Volume 45
judicial review frameworks to Australia. The la w in Australia has also developed in
relevant respects. And, as a consequence of cases like Minister for Immigration and
Citizenship v Li,
there seems to be growing disquiet amongst administrative decision-
makers about the intrusion of judicial review into administrative discretion.
It is
therefore timely to revisit deference in the context of judicial review of administrative
action, and explore whether it has anything to offer Australian adminis trative law.
This article does just that. Part II provides a brief overview of the US origins of the
doctrine of deference, including its theoretical underpinnings and some o f the
challenges in its application. Part III explains why, in Enfield, the High Court concl uded
that deference had no place in Australian law, a nd precisely what it was that the High
Court rejected. Part IV of this article exa mines recent developments in the doctrine in
Canada and the UK, and whether these developments may be in any way instructive for
Australian courts. I argue that the way in which courts i n those jurisdictions have
applied deference in various contexts over the last two decades shows that there is no
singular doctrine of deference in the administrative law context. Rather, deference has
been applied in a range of ways, for a variety of reasons, some of which are not dissimilar
from the principles that Austra lian courts apply in reviewing administrative action. As
a result, there may be some lessons from both jurisdictions for Australia.
The case that inevitably springs to mind as the star ting point of modern US law on
deference is, of course, Chevron v Natural Resources Defense Council,
decided in 1984.
However, the intellectual and doctrinal origins of deference developed well before the
1984 Chevron case, in the context of constitutional i nterpretation. A century prior to
Chevron, James Bradley Thayer argued that:
the function of the court is not that of fixing the construction of the Constitution which it
believes to be the sound one, but that of determining whether another body, charged with
an independent function has discharged its office or exercised its judgment in an
unreasonable manner.
Thayer expanded on this point in his Harvard Law Review essay,
which has been
described as the most influential essay e ver written on American const itutional law.
He argued that, contrary to the orthodox position articulated in Marbury v Madison,
US Constitution d oes not give courts exclusive responsibility for interpreting and
upholding the Constitution, and contains other, political mechanisms for holding the
legislative and executive branches to account. Thus, he argued that in deciding whether
(2013) 249 CLR 332 (Li).
See, eg, Chris Wheeler, Judicial Review of Administrative Action: An Administrative
Decision-Makers Perspective (Paper presented at Australian Institute of Administrative
Law Conference, Brisbane, 22 July 2016).
467 US 837 (1984) (Chevron).
Matthew Lewans, Administrative Law and Judicial Deference (Hart Publishing, 2016) 94 citing
James B Thayer, Constitutionality of Legislation: The Precise Question for a Court (1884) 38
Nation 314, 315.
James B Thayer, The Origin and Scope of the American Doctrine of Constitutional Law
(1893) 7 Harvard Law Review 129.
Henry Monaghan, ‘Marbury and the Administrative State’ (1983) 83 Columbia Law Review 1,
1 US (1 Cranch) 137, 177 (1803).

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