The “Dreadful Truth” and Transparent Fictions: Deference in New Zealand Administrative Law

Abstract

“Deference” as a term is not recognised in New Zealand judicial review and significant opposition exists to its use. The reasons for this are rooted in the “transparent fiction” of ultra vires which remains the justification for judicial review. The continued reliance upon the notion of the courts as the determinator of the law leaves little space for the recognition of areas in which the executive has such authority. However, the absence of deference as a term does not mean that the concept does not exist. In fact, it hides in plain sight, woven through the various grounds for review that are recognised in New Zealand. This is particularly true with the expansion of reasonableness as a ground and the drift towards “contextual” review. However, lacking clear recognition and structure, the exercise of deference in New Zealand is haphazard. Despite the efforts of lower courts and the work of some academics to develop models to provide structure to this “variable intensity” approach, the opposition of the Supreme Court means that the application of deference remains open to the discretion of individual judges. Nevertheless, evidence already exists of a degree of structure being applied around variable intensity review. This chapter argues that by recognising such variability as deference, and applying a structural overlay such as Taggart’s “rainbow” model, alongside suitable signposts for users, the current confusing muddle could be clarified.