For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law
Janina Boughey
Among English-speaking common law
jurisdictions Australia has been the most resistent to
doctrines of deference in the administrative law context. It is often said that
Australia’s High Court has rejected
deference. In fact, a majority of the High Court has
rejected Chevron deference, but only in obiter. Nevertheless, it is
true that Australia has no ‘doctrine’ of deference, that Chevron deference
specifically is generally thought to be inconsistent with the Australian
conception of the separation of powers, and that the very mention of the word ‘deference’
seems to provoke the ire of some judges.
The High Court of Australia’s reasons for
rejecting Chevron deference were its ‘undesirable consequences’ and that
it involves an ‘abdication of judicial responsibility’. Australian public law rests on a different
conception of judicial power and its separation from executive and legislative
power than does US law. In the US, influenced
by the theories of Thayer
and others,
judicial power is broad in scope but not exclusive in the realm of
interpretation: courts need not supply all
statutory meaning. By contrast Dicey’s
conception of judicial power as narrower in scope, but exclusive in the
domain of statutory interpretation has dominated and remains orthodox in Australia.
Indeed, Australian administrative law may be described
as ‘more
diceyan than dicey’ in its conception of judicial review of administrative
action.
Under the Australian conception of the
separation of powers interpreting legislation is an exclusively judicial
function, as is finally and conclusively determining other questions of law.
The separation of judicial power is constitutionally entrenched (albeit to
differing degrees at the federal
and state
levels). The orthodox view is that allowing
the executive to finally and conclusively interpret a statute provided that their
interpretation is reasonable, as both the US’s Chevron doctrine and the Canadian
approach to deference
do, would permit the executive to exercise a judicial function and thus breach
of the constitutionally entrenched separation of judicial power. One judge has
even gone so far as to describe Chevron deference in the Australian
context as antithetical to the rule of law.
The apparent incompatibility of Chevron deference
with Australia’s constitutional framework seems to have caused judges and commentators
to eschew the language of deference altogether. This is despite the fact that not
all types of deference, in all contexts, are incompatible with Australia’s
constitutional framework. For example, epistemic,
or Skidmore
deference (where weight is given to the executive’s interpretation, as
opposed to doctrinal
deference which gives the executive latitude to determine the meaning of
legislation within the bounds of reasonableness) would be acceptable
under Australia’s approach to the separation of powers and statutory
interpretation. Furthermore, as I and the next Chief
Justice of the High Court have (separately) pointed out, Australian courts do,
in fact, defer to the executive on a range of questions of law, some of which
arguably involve statutory interpretation. Australian courts use both epistemic and doctrinal forms of
deference, but they prefer terms such as ‘judicial
restraint’ or the giving of ‘weight’
rather than deference, due to the connotations of the term. While these may be
examples of judicial deference to the executive, they do not form a coherent
doctrine. It is often not clear why
Australian courts chose to give weight or latitude to the executive’s view of
the law in one case and not in another.
The absence of a doctrine of deference in
Australia does not appear to have rendered the Australian administrative state
incapable of performing its functions. Australian legislatures are not
frequently having to re-draft legislation in response to court decisions which
interpret administrative powers differently from the way they are understood by
the executive (though there are some
examples). It is not clear that Australian
regulators’ inability to conclusively interpret their legislation within the
boundaries of reasonableness means that their actions are more likely to be
challenged, or are any less certain, compared with their US counterparts. Nor is
there a general sentiment
in Australia that courts become embroiled in policy-making as a result of their
lack of deference to the executive on questions of statutory interpretation.
It could be that the absence of a doctrine
of deference and the role of agencies in drafting legislation in Australia has
led to differences in the drafting of statutes. For instance, Australian
statutes might generally be more
prescriptive
in the powers they confer on regulators, and contain fewer ‘gaps’. I am not
sufficiently familiar with US legislation to offer a considered analysis of
whether that is true. But a cursory comparison of the equivalent piece of
Australian federal legislation to the
legislation at issue in Loper
Bright Enterprises v Raimondo suggests it is at least not true
in all cases. Just as the Magnuson-Stevens
Fishery Conservation and Management Act PL 94-265 (US) confers
broad powers to make a fisheries management plan which balances a range of
objectives, the Fisheries
Management Act 1991 (Cth) confers similarly broad powers on the
Australian Fisheries Management Agency (AFMA) to make management plans which
balance its objectives. The Australian Act confers similar powers on AFMA to
require e-monitoring and observers as well as general powers to set conditions,
without specifying who bears the costs of those requirements.
A more likely reason why the lack of
deference is not a significant problem for the executive in Australia is the
fact that it is a Westminster parliamentary system—with no separation between
the executive and legislative branches. As the executive, by definition, has
majority support in the lower house, the executive in Australia also has far
greater control over the legislative agenda compared with the US. The vast
majority of Bills
originate
within the executive, so that departments and agencies are almost always
closely involved in the drafting and amendment of the laws they administer.
While US agencies propose and draft some Bills and provide ‘technical
drafting assistance’ for most others that they administer, Australian
agencies have a far greater degree of input into their empowering legislation. In addition, Australian parliaments do not
usually make the kinds of significant amendments that are common in the US.
This would logically result in Australian laws better reflecting the
administering agency’s views on how regulatory schemes ought to operate, and may
therefore be less need for creative interpretations to achieve effective
administration.
While the effectiveness of the Australian
administrative state does not appear to have suffered due to the lack of a
doctrine of deference, Crawford
and I
have (separately) argued that there are situations in which a deference
doctrine may prove helpful in addressing existing and emerging issues in
Australia’s system of administrative law. Deference in these circumstances
would not, however, assist the administrative state by giving it more latitude
to administer ambiguous laws. Rather, the circumstances in which deference
would be useful would protect those who rely on an agency’s interpretation of
the law (as Chevron deference also does).
There are a range of situations in which the public relies on government
agencies’ interpretations of statutes in order to understand their own rights
and obligations. One is where the law is complex,
and agencies provide guidance on what it means, such as taxation law and
competition law. Another is when laws are changed
frequently, making it difficult for the public to keep up with the current
law, and agencies provide official or unofficial guidance as to relevant
changes. The latter was a problem
during
the COVID-19 pandemic, with rules changing frequently, and the orders
themselves often being difficult to locate. The public relied on the
government’s announcements and websites to understand what the rules were at
any given time. Another increasingly common example is when governments rely on
automated systems in administering the law. As my colleagues, Professors
Bennett Moses and Crawford and I have argued, automated systems require
laws to be interpreted and, while those interpretations should be
publicly available and accessible, they often are not, or are not available in
a comprehensible format. Where a person relies on an agency’s interpretation in
these circumstances, and that interpretation turns out to be incorrect,
currently Australian
law does not protect the person. A doctrine of deference to expert agencies’
interpretations in these limited situations would solve this problem, and be
justified by the normative rationale of fairness. Although deference may not be
the only or even be the best adapted legal solution to these problems.
While, in my view, the orthodox Australian
view that deference is inconsistent with our constitutional and legal framework
is overstated, I am not convinced that adopting a formal doctrine of deference
in Australia is necessary or desirable beyond those limited situations set out
above. I have two main reasons.
First, the intimate role that departments
and agencies play in drafting legislation provides a strong argument against
the adoption of Chevron deference (or any other variety of doctrinal
deference) in Australia. I agree with Scalia J,
Manning
and others’ warnings that Auer deference provides an incentive for
agencies to draft ambiguous regulations in order to enlarge their own powers
(though I also note that incentive alone does not necessarily mean that this occurs).
In a system where agencies are so closely involved in drafting primary
legislation, the same concerns arise. Walker
has argued that the significant ‘shadow’ role that agencies play in providing
technical drafting assistance to congressional staffers in the US warrants a
reconsideration of Chevron deference. The argument is stronger still in
parliamentary systems like Australia. The level of control the executive has
over the legislative agenda in parliamentary systems also means that there is
less need for deference—if courts interpret a statutory provision in a way that
is unworkable for the executive or doesn’t reflection parliamentary intention,
legislation can usually be amended
relatively
quickly.
I note that this argument does not preclude the adoption or utility of
epistemic deference, and that the involvement of departments and agencies in
the drafting of legislation gives them particular insight into the purposes of
statutes that may be useful and compelling for courts in performing their
interpretive function.
My second reason is more pragmatic. Australian
law on when and how ‘weight’ should be given, or judicial restraint should be
shown, to the executive on questions of law would benefit from greater clarity.
This might be assisted by a greater willingness by courts to engage with
deference doctrines overseas and draw parallels with Australia. However, the
formal doctrines of deference in the US and Canada have proven difficult to
apply. In Canada, questions of whether deference is due, how much deference
ought to be given, and what exactly reasonableness requires now consume courts
in judicial review of administrative action. The Canadian Supreme Court has
dramatically changed its approach to deference at least three
times
since
1979. The US
doctrine/s are even more complex, with at least three
different kinds of
deference. Some parts of the US doctrines of deference have never been clear,
such as whether an agency should still be entitled to deference if it interprets
a legislative provision to permit a change in policy under the statute, and
whether Chevron deference applies to ‘soft’ law or
informal adjudications as well as legislative rules
and formal adjudications. Others have evolved and become controversial
or difficult in their application, such as the legitimacy and scope of the major
questions doctrine.
The existence of a formal ‘doctrine’
suggests that there is greater certainty and less room for judicial discretion
in determining the boundary between judicial and executive power. But it is not
clear this is accurate. Judges disagree
about whether a statutory provision is ambiguous and so whether Chevron
deference applies, on seemingly partisan
lines. It is not clear that developing a formal doctrine of deference makes the
law or the scope of statutory executive power clearer or less manipulable
in application than the Australian position in which courts may decide to give
weight to an agency’s view on certain questions of law, but offer no
explanation of why they do or do not in each case.
Janina
Boughey is Associate Professor, University of New South Wales,
Faculty of Law + Justice. j.boughey@unsw.edu.au
She
wishes to thank Lisa Burton Crawford, Ros Dixon, Susan Rose-Ackerman and Oren
Tamir for helpful discussions and feedback.