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The Concept of Deference in Substantive Review of Administrative Decisions in Four Common Law Countries

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THE CONCEPT OF DEFERENCE IN SUBSTANTIVE REVIEW OF ADMINISTRATIVE DECISIONS IN FOUR COMMON LAW COUNTRIES by Alan Freckelton A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) January 2013 © Alan Freckelton, 2013 ABSTRACT This thesis examines the concept of “deference” in relation to judicial review of administrative decisions in Canada, and then compares this approach to judicial review to that which exists in the United Kingdom, New Zealand and Australia. Canadian courts have adopted a system of “substantive review” of administrative decisions, at least since 1979 (if not earlier), and will generally show deference to the decision-maker. It is important to note that Canadian courts have interpreted the word “deference” not as subservience (an approach that would make judicial review pointless), but as a form of “respectful attention” to the decision under review. Canadian courts recognise that they do not have a monopoly of wisdom on matters of statutory interpretation, but will step in to set a decision aside when that decision is unreasonable in some sense. Courts in the United Kingdom have recognised at least since 1987 that the classic standard of Wednesbury unreasonableness – that the decision is “so unreasonable that no reasonable person could have made it” – is not suitable for all kinds of administrative decisions, and have moved to a system whereby there is a “variegated standard” of reasonableness on judicial review for matters not covered by the Human Rights Act 1998, and a proportionality approach for those that are. The law in New Zealand is not as clear, because the Supreme Court has yet to squarely approach the issue, but the lower courts certainly appear to be moving in a similar direction. However, Australian courts vehemently deny that they show any deference to administrative decision-makers, and Australian academic commentators are equally insistent that such an approach is legally suspect at best and mere obsequiousness to government at worst. This is despite the fact that Australia has always recognised Wednesbury unreasonableness as a ground of judicial review. This thesis attempts to dispel some of the Australian arguments against a deference approach, particularly in relation to s.75 of the Australian Constitution, and concludes that Australia would be best off adopting a form of substantive review of administrative decisions, similar to that which exists in Canada. i TABLE OF CONTENTS Title Page Abstract………………………………………………………………………… i Table of Contents………………………………………………………………. ii List of Figures………………………………………………………….............. vi Acknowledgements…………………………………………………………….. vii Introduction – Deference and Substantive Review………………………….. 1 “Substantive review”, “merits review” and “review of the merits”…………….. 2 Structure of this thesis…………………………………………………………... 6 1 Basic Principles of Judicial Review…………………………………………... 7 1.1 What is judicial review and why do we need it?................................................... 9 1.1.1 Why does judicial review exist at all?................................................................... 12 1.1.1.1 The shared common law………………………………………………………… 13 1.1.1.2 The constitutional baseline set by Marbury v Madison………………………… 15 1.1.1.3 A consequence of constitutional entrenchment…………………………………. 17 1.2 The “Administrative State”……………………………………………………... 20 1.3 The tension between Parliamentary supremacy and the constitutional role of courts……………………………………………………………………………. 23 1.3.l Parliamentary supremacy……………………………………………………….. 24 1.3.2 The rule of law defined…………………………………………………………. 25 1.3.3 Embodying the tension: privative clauses………………………………………. 28 1.4 Summary………………………………………………………………………... 31 2 Substantive Review in Canada to 1975……………………………………….. 33 2.1 Grounds of judicial review in Canada…………………………………………... 34 2.2 Early exemplars: Canadian Supreme Court jurisprudence prior to 1949……….. 35 2.2.1 Prince Edward Island (Commissioner of Public Lands) v Sulivan……………... 36 2.2.2 Other pre-CUPE cases in which “deference” was shown………………………. 37 2.2.2.1 Labour tribunals………………………………………………………………… 38 2.2.2.2 Wartime and national security issues…………………………………………… 40 2.3 The denial of deference in the Supreme Court, 1949-1975…………………….. 41 ii 2.4 Prelude to the Canadian decisions – Anisminic Pty Ltd v Foreign Compensation Commission……………………………………………………... 43 2.5 “Complete lack of deference” cases in Canada…………………………………. 47 2.5.1 Metropolitan Life………………………………………………………………... 47 2.5.2 Bell v Ontario Human Rights Commission……………………………………... 51 2.6 Conclusion: the turning of the tide……………………………………………… 54 3 The Return of Deference in Canadian Substantive Review………………… 55 3.1 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp……………………………………………………………………………... 55 3.2 The four standards of review in Canadian administrative law………………….. 62 3.2.1 Flaws in the (pre-Dunsmuir) reasonableness standards………………………… 64 3.2.1.1 A “sliding scale” of review?.................................................................................. 65 3.2.1.2 “Weight”………………………………………………………………………… 67 3.2.2 Judicial criticism of the “three standards” approach……………………………. 71 3.2.3 Limits on the principle of deference…………………………………………….. 73 3.3 A new high water mark? Dunsmuir v New Brunswick………………………….. 74 3.3.1 Facts……………………………………………………………………………... 75 3.3.2 Majority judgement……………………………………………………………... 76 3.3.3 Just moving traffic? The judgement of Binnie J………………………………... 81 3.3.4 The “just the facts approach”: Deschamps J……………………………………. 85 3.4 Dunsmuir reviewed……………………………………………………………... 87 3.4.1 What Dunsmuir has achieved…………………………………………………… 87 3.4.2 The “spectrum of reasonableness”……………………………………………… 88 3.4.3 “True questions of jurisdiction or vires”………………………………………... 90 3.4.4 To what should courts defer?................................................................................ 92 3.5 “Substantive review” in Canada defined……………………………………….. 95 4 Deference in the United Kingdom…………………………………………….. 97 4.1 Reasonableness and irrationality: the GCHQ Case……………………………... 98 4.2 Varying the Wednesbury principle: “anxious scrutiny”………………………… 101 4.2.1 Application of the “anxious scrutiny” principle………………………………… 102 4.2.2 Cases where “anxious scrutiny” is not necessary……………………………….. 107 4.2.3 Use of proportionality in pre-Human Rights Act cases?....................................... 109 4.2.4 Indicia of deference – common features and key differences………………….. 110 4.3 The Human Rights Act 1998……………………………………………………. 111 4.4 Irrationality after the Human Rights Act………………………………………... 114 iii 4.4.1 Definition of “rationality”………………………………………………………. 114 4.4.2 Moves towards a single test of judicial review?.................................................... 115 4.4.3 The role of deference……………………………………………………………. 118 4.5 Proportionality…………………………………………………………………... 120 4.5.1 Origins of the principle………………………………………………………….. 120 4.5.2 Differences between the irrationality and proportionality approaches…………. 122 4.5.3 “Merits review”…………………………………………………………………. 125 4.5.4 Deference and the “margin of appreciation”……………………………………. 127 4.5.5 Deference illustrated – the Denbigh High School case…………………………. 129 4.6 Merits review, variable review and proportionality: is there really any difference?............................................................................................................. 132 4.7 Summary………………………………………………………………………... 138 5 Deference in New Zealand…………………………………………………….. 141 5.1 Deference and variable unreasonableness in New Zealand law – the beginnings 143 5.1.1 Wellington City Council v Woolworths New Zealand Ltd (no 2)……………….. 143 5.1.2 Origins of deference and variegated review in New Zealand …………………... 144 5.2 A sudden rush – the Court of Appeal in 1999-2000…………………………….. 146 5.3 A revival of variegated reasonableness? Wolf v Minister for Immigration……... 150 5.4 Increasing intensity of anxiety?............................................................................. 154 5.4.1 Discount Brands………………………………………………………………… 154 5.4.2 Unison Networks Ltd v Commerce Commission………………………………... 158 5.4.3 Ye v Minister for Immigration ………………………………………………….. 160 5.5 Conclusions……………………………………………………………………... 164 6 Deference in Australia 166 6.1 The Enfield decision…………………………………………………………….. 167 6.1.1 Prelude – Chevron………………………………………………………………. 167 6.1.2 Enfield – the facts……………………………………………………………….. 170 6.1.3 High Court decision……………………………………………………………... 173 6.1.3.1 Majority decision………………………………………………………………... 173 6.1.3.2 Gaudron J……………………………………………………………………….. 178 6.1.3.3 Academic comment……………………………………………………………... 179 6.2 Merits review in Australian courts……………………………………………… 180 6.2.1 The judicial power of the Commonwealth……………………………………… 180 6.2.2 “Judicial power” and “merits review”…………………………………………... 183 6.2.3 “Merits review” and “review of the merits” distinguished……………………... 187 6.2.3.1 Sun v MIEA……………………………………………………………………… 188 iv 6.2.3.2 The Guo litigation………………………………………………………………. 190 6.3 Deference and standards of review in Australia………………………………… 193 6.3.1 Jurisdictional facts………………………………………………………………. 194 6.3.1.1 Definition………………………………………………………………………... 194 6.3.1.2 M70 v Minister for Immigration………………………………………………… 195 6.3.1.3 “The Minister is satisfied that …”………………………………………………. 198 6.3.2 Deference on questions of law generally……………………………………….. 201 6.3.3 Expertise…………………………………………………………………………
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