Expanding the Scope for Judicial Deference in the Mixed-Government Era

Abstract

In NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, the High Court determined that public law remedies did not lie against a private entity, AWBI. The decision has created significant uncertainties as to the application of judicial review to outsourced decisions. This is of serious concern in the era of mixed-government which is characterised by an increased focus on the privatisation of government functions. Most academic scholarship has focused on access to judicial review mechanisms as a means of ensuring accountability in this era. This article focuses on the next steps, assuming a litigant has standing, advocating for an expanded scope of judicial deference to private bodies. Noting that Australian courts have been circumspect in their application of deference, particularly in the leading judgment of Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, I propose a ‘persuasive precedent model’, which can be accommodated within the separation of powers doctrine as it is currently applied in Australian administrative law.

Keywords: Judicial Deference, Chevron, Skidmore, Outsourcing, Mixed-Government, Administrative Law, Judicial Review