DEFERENCE, DEFIANCE, AND DOCTRINE: DEFINING THE LIMITS OF JUDICIAL REVIEW

Abstract

While a court must respect the sphere of decision-making autonomy properly enjoyed by a public authority, a general doctrine of deference is unlikely to furnish a useful means of defining the limits of the court's jurisdiction. The appropriate degree of judicial deference is dependent on all the circumstances: the correct balance between constitutional rights and the general public interest is a feature of the context in which a specific legal issue arises. A doctrine of deference is rendered otiose by application of the ordinary common law grounds of judicial review, whereby the decision of a public authority is subjected to a test of procedural rectitude. The legitimacy of an executive decision is a function of the quality of the process that led to it, in which rights are accorded an importance commensurate with their true weight in all the circumstances. Wednesbury unreasonableness, correctly understood, constitutes a control over process adaptable to context and circumstance. The rule of law imposes constraints of equality and due process, and in the legislative context the former principle is paramount. Statutes must be interpreted as conforming to constitutional principle, so that basic rights are not unjustifiably curtailed. Legislation should not be held invalid, or defective, when capable of a suitably benign construction, consistent with constitutional standards. What is required is a construction that reconciles legitimate public purposes and established basic rights, according to context; and courts are only rarely justified in abdicating that responsibility.