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45 Fed. L. Rev. 597 (2017)
Re-Evaluating the Doctrine of Deference in Administrative Law

handle is hein.journals/fedlr45 and id is 599 raw text is: 
















     RE-EVALUATING THE DOCTRINE OF DEFERENCE IN
                        ADMINISTRATIVE LAW


                                Janina Boughey*



                                  ABSTRACT
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 Court's decision in Corporation of the City of Enfield
v Development Assessment Commission' as authority. In that case, the High Court of
Australia indicated that Australia's strict separation of powers, as manifested by the
legality/merits distinction, 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 'doctrine' of deference -deference 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.

I   INTRODUCTION
Deference has become something  of a buzzword in administrative law in recent years.
Of  the papers delivered at the Cambridge   University Public Law  Conference  in
September 2016, for instance, around half discussed the concept of judicial deference to
administrative bodies in various aspects of their decision-making. The doctrine of
deference -insofar 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 interpretations of law in Corporation of the City of Enfield v Development
Assessment Commission, 2 on the basis that it would  contravene  Australia's strict
separation of judicial power. However,  since then, the doctrine of deference has
developed considerably in those jurisdictions with more similar (though not identical)

    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.
1   (2000) 199 CLR 135.
2   (2000) 199 CLR 135, 153-4 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ) ('Enfield').

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