The Concept of Deference in Judicial Review of Administrative Decisions in Australia - Part 1

Since the year 2000, the Australian High Court has twice considered -once in detail and once briefly -whether a North American concept of 'deference' to administrative decisionmakers should be introduced into Australian law.In Corporation of the City of Enfield v Development Assessment Commission 1 the High Court roundly rejected any endorsement of a common law principle of deference, claiming that such an approach involves an abdication of the court's responsibility, a theme later taken up by commentators.2The Enfield judgment, criticising any notion of deference to administrative decision-makers, was a direct response to the arguments raised by counsel.However, in Minister for Immigration and Citizenship v SZMDS 3 , the issue was raised again, this time seemingly on the volition of Gummow ACJ and Kiefel J.Although the deference approach was rejected again, the concept this time was not dismissed out of hand.Canadian administrative law has included a doctrine of deference to administrative decisionmakers on judicial review of administrative decisions at least since the 1979 decision of Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp4 (hence CUPE) , although the approach may actually have a much longer lineage. 5 The deference approach has been restated and updated in the seminal case of Dunsmuir v New Brunswick, where the term was defined as follows: 6Deference is both an attitude of the court and a requirement of the law of judicial review.It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view.Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.The notion of deference 'is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers,7 ... Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers.Deference is an approach to judicial review taken by the courts, and effectively acts as a form of reconciliation between the rule of law and Parliamentary supremacy.That is, deference to administrative decision-makers balances the courts' constitutional requirement to review the decisions of administrative decision-makers to ensure that they are both constitutionally valid and within the decision-maker's power to make, and the power of the Parliament to allocate certain decision-making powers to persons authorised by or bodies created by statute.

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