A principled approach towards judicial review: lessons from W v Registrar of Marriages

Abstract

This article examines the role of deference in constitutional challenges in the context of minority rights claims. It reviews prevailing justi! cations against judicial activism, arguing that contextual considerations such as the existence of an institutional framework for inclusive governance are key to determining the appropriate role and indeed, duty of the court. Parting company with the court’s emphasis on deference and social consensus in W v Registrar of Marriages, it argues that courts have an elevated responsibility to determine interpretive issues on substantial grounds based on principle or meta-principles rather than structural grounds like deferral to majority views in minority rights claims. This imposes a greater burden on the judicial branch to serve as a conduit for minority representation in contentious constitutional issues and more broadly as a forum for deliberative participation by marginalised communities. Whilst it is essential that the safeguards of checks and balances be rigorously observed, a heightened level of scrutiny in such instances complements, rather than undermines the rule of law.