Deference

Deference

[def-er-uhns]

Deference denotes the extent to which a court respects the authority or validity of a government act or decision during the process of judicial review. If the court exhibits less deference, this may contribute to a finding that the government acted ultra vires, or beyond its power.

Influencing factors include:

  • The nature of the decision (poly-centric, human rights and/or individual liberties usually attract less deference or more scrutiny).
  • Decisions which impact on individuals attract more scrutiny
  • If the decision makers have a higher level of skill or expertise in the area in question, the court will pay greater deference to their decision.
  • If the decision involves a factual, as opposed to legal inquiry, a court will pay higher deference to the decision.
  • If there are other controls on the decision makers, there will also be less judicial scrutiny (e.g. ombudsmen, auditors). Also if the decision making body is democratically elected there is less scrutiny due, because decision makers are 'controlled' by their electors.

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