Statement Made By Peter Cane Essay

Question:

Under US administrative law, judges may be required to ‘defer’ to administrators’ interpretations of statutes, where in both English and Australian law they must never do so...
Critically discuss this statement.

Answer:

Cane (2016), in his book “Controlling Administrative Power: An Historical Comparison” stated that under the administrative law of the United States, the judges can be required to defer to the interpretation of statutes by the administrators; however, the same cannot be done under the administrative law of both UK and Australia. Along with this question, Cane highlighted an array of questions which was related to the control regimes and the systems of government of the three nations. He not only drew the differentiation between the US administrative system and the administrative system of UK and Australia, but also between the administrative law of UK and Australia, by highlighting the rejection of the Australian courts of the recent developments of the English Administrative law[1]. In the following parts, a discussion has been carried on the statement made by Cane to establish the differences under the ideologies of the administrative laws of the three nations.

The reason between the deference on part of the US judges and the non-deference on part of the Australian and English judges has been stated by some lawyers as the difference in the normative views, which have their basis on different values with regards to the proper relationship in between the executive and the government institutes, along with the best manner in which the administrative decision making can be controlled. The public and the constitutional law theory, from this ideological perspective is usually understood as being the branches or, or being grounded in the normative political theories, in the similar way as the criminal law or private law theory is taken to be the species based on the moral theory. The best manner of explaining this is that the lawmakers view that this is the right manner of the things to be[2].


There is a stark difference between the US law and the English and Australian law[3]. There is only a single right answer, under the English and Australian law, regarding what the specific regulation or provision is related to and what it means. And this answer is given by the ultimate court, which is the High Court for Australia and Supreme Court for the UK[4]. Though, by contrast, under the laws of US, the specific regulation or provision having a single probable meaning, or a higher number of meanings depends upon the interpretation of the particular regulation or provision. So, in case a provision is interpreted properly, it could have a higher number of meanings, then a sole meaning. And in such cases, the court in particular situations can defer to, i.e., adopt the meaning of provision, which is different from the one which has been chosen by the administrator. This is true eve when the court would have itself, chosen a diversified or varied meaning[5].

This is one point which has been noted as a key point of differentiation between the US law and the English and Australian law, and has been noted quite often. The literature has even compared the rules pertaining to the administrative interpretation’s judicial control with the ones of administrative policy making and fact finding regarding the judicial control. The administrative policy making and the fact finding, under the English and Australian laws, have to defer to a great or less extent. Contrasting to this, the US laws, particularly its orthodox accounts, require the deference of quite a less administrative policy making and fact finding in comparison to its administrative interpretation. Some of the writers, as a normative matter, have deemed the position under the laws of US as being anomalous and the position under that of the English and Australian laws as being consistent with the constitutional principles which are related to the courts’ role and the relationship present in between the administrators and the courts. A particular segment of scholars have also laid down the contention that the laws of UK and Australia need to agree to certain deference when it comes to the administrative interpretations[6].

Though, a plausible explanation on the differentiation between the US laws and that of Australia and UK are still not adequately present. And in order to understand this, there is need to go to the basics of these laws. Under the English law, the rule is very simple. The questions on the law have a single right answer and this answer is to be given by the Supreme Court of UK. And the decisions pertaining to the interpretation of regulations and statutes by the administrators are subjected to the judicial review. The role of the court is to determine if the text has been interpreted correctly or not[7]. The leading Australian case in this matter, which clears the stand of the Australian law, is the case of Corporation of the City of Enfield v Development Assessment Commission[8]. In this case a differentiation was made between the facts which were jurisdictional and the ones which were non-jurisdictional. They held that plurality was the standard review of administrative fact finding and not the administrative statutory interpretation[9].


Under the laws of US, there are broadly three key varieties of administrative interpretation’s judicial deference[10]. These have been named after the eponymous cases of Skidmore Deference[11], the Seminole Rock (or Auer) deference[12], and the Chevron deference[13]. The Skidmore deference based on the determination of the federal agency to be entitled to judicial respect in case the determination has been authorized by the statute and has been made on the basis of the informed judgment and the experience of the agency[14]. Under the Auer or Seminole Rock deference, the agency interpretations are given binding deference by the courts, with regards to their own regulations[15]. The Chevron deference refers to the deference of the courts of the agency interpretations of the statutes, till the time they are unreasonable[16]. The three strand of the reasoning support more or less, the courts’ deference regarding the administrative interpretations, where the two are substantive and one is formal.

When the Chevron decision is read on the basis of concept of interpretation, the first step which has to be taken is to decide if the provisions are reasonable open to more than one meaning on the basis of their interpretation and the second step on this regard is to choose between the meanings which require policy making. If these are put down in familiar terms of the Australian or the UK law, the first requirement would be regarding the answer on the question of law and the second requirement would be regarding the exercising of discretion. It is well known that the criteria for the judicial review of answer to question of law of the administrator is different under the three nations; law regarding the administrative policy making and fact finding. Though, exercising discretion which has been conferred through the provisions cannot be distinguished from the reasonable interpretation of the provisions in a purely analytical manner[17].


To clarify the stands of the three laws, the US laws state that the power regarding the interpretation of the regulations and statutes is shared between the executive and the judiciary. And a contrasting view is held under the UK and Australian law, where the conclusive interpretation of the regulations and that of the statutes is held exclusively by the judiciary. Under the laws of Australia and UK, the supreme interpreter of the regulations and statutes is the High Court and the Supreme Court, respectively. The reason for this is not due to the courts being sovereign organs in the respective governments, but because the courts are deemed as the mouthpiece and the servants of the law. Both UK and Australia are a rule of law states, in strong sense. This is coupled with the doctrine which provides that there is a single right answer to a question of law and the function of the highest court, as that of a supreme interpreter, clarifies why the courts should not make deference to administrative interpretations; whereas, under the laws of the US, there is an absence of a sole supreme interpreter of the regulations and of the statutes. The interpretation power is shared in between the executive and the judiciary. Under the Australian and UK laws, the interpretation of statutes and regulations is done normatively and strategically and the administrators are required to approach the interpretation in a very precise manner, as would be done by the court and on the basis of applicability of same principles, rules and mode of reasoning as employed by the court[18].


To conclude the discussion undertaken in the preceding parts, it becomes clear that the underlying differentiation in the administrative laws of the US on one hand, and that of UK and Australia on the other, have laid the foundations for the differentiation in the deference of interpretation of statutes by US and the non-deference under the laws of the UK and Australia. The US administrative laws allows the interpretation of law by both executive and judiciary, whereas the Australian and UK laws give this power only to the judiciary and this is the key reason for the different standing on the deference matter.

Bibliography

Cane P, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016)

Dwyer T, Legal and Ethical Issues in the Media (Palgrave Macmillan, 2012)

Endicott T, Administrative Law (Oxford University Press, 3rd ed, 2015)

Gifford DJ, Administrative Law: Cases and Materials (LexisNexis, 2nd ed, 2010)

Groves M, Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014)

Wilberg H, and Elliott M, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Bloomsbury Publishing, 2015)

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)

Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

Administrative Law

Clarke C, The Uneasy Case Against Auer and Seminole Rock (2014) <

Eskridge Jr. WN, and Baer LE, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan (2008) <

Legal Information Institute, Chevron Deference (2017) <

Peter Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016)

Ibid

Hanna Wilberg and ?Mark Elliott, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Bloomsbury Publishing, 2015)

Tim Dwyer, Legal and Ethical Issues in the Media (Palgrave Macmillan, 2012)

At 1

Ibid

Timothy Endicott, Administrative Law (Oxford University Press, 3rd ed, 2015)

(1999) 199 CLR 135

Matthew Groves, Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014)

Conor Clarke, The Uneasy Case Against Auer and Seminole Rock (2014) <

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)

William N. Eskridge Jr. and Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan (2008) <

Daniel J. Gifford, Administrative Law: Cases and Materials (LexisNexis, 2nd ed, 2010)

Legal Information Institute, Chevron Deference (2017) <

At 1

Ibid

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