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Lacey, Wendy --- "A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam" [2004] SydLawRw 7; (2004) 26(1) Sydney Law Review 131

A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam



The authority of the High Court’s 1995 decision in Teoh must now be examined in light of the High Court’s 2003 decision in Lam. In the latter case, the minority view of McHugh J expressed in Teoh appears to have gained ascendancy among a majority of the present High Court judges. Though the critique on Teoh offered in Lam is contained in obiter comments only, the principle that ratification of a treaty may give rise to a legitimate expectation that administrative decision-makers will act in accordance with the terms of the treaty, has been seriously called into question.

In this paper, each of the separate judgments provided in Lam are examined in detail. The argument is presented that the reasoning employed by the Court is open to criticism on several grounds. These include the introduction of private law concepts into the public law sphere, and the failure to distinguish between questions going to the existence of a breach of procedural fairness, and questions that pertain to the discretionary power to grant or deny a remedy. Though an investigation of the continuing role that legitimate expectations may play in administrative law should be welcomed, it is argued that the reasoning adopted in Lam is flawed, and is likely to create only further confusion surrounding legitimate expectations generally.

1. Introduction

The latest High Court decision to address the subject of legitimate expectation, including the court’s previous discussion in Teoh,[1] is the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Lam.[2] The applicant, Mr Lam, had had his Transitional (Permanent) Visa cancelled in early 2001 and his deportation ordered, following a conviction for serious offences. Like many in this situation, Mr Lam had established a family during his time in Australia, and his deportation would have either entailed relocating his Australian-born children to another country, or Mr Lam being separated from them. While these facts raise important issues regarding the government’s policy to deport in such instances,[3] the case itself raised no significant or novel legal question. Neither Teoh, nor the more recent and controversial English case, R v North and East Devon Health Authority; Ex parte Coughlan,[4] were relied upon in argument by the applicant. The latter case, which identified circumstances where a decision-maker would be required to offer substantive as opposed to merely procedural fairness, has provoked strong criticism in Australia. Due to Australia’s constitutional framework, however, the case is unlikely to gain a foothold in Australian administrative law. For this reason, and in order to provide a specific framework for analysis in the present context, the Coughlan decision is only considered in the extent to which it was referred to in the separate judgments in Lam. The focus of this paper is therefore directed specifically at the court’s treatment of Teoh and legitimate expectation.

Notwithstanding that neither Teoh nor Coughlan were relied upon in argument, the decision in Lam is extraordinary for a number of reasons. It foretells of significant changes, or more precisely limitations, to the role of legitimate expectations in Australian administrative law, as well as to the doctrine in Teoh. The case is also noteworthy for the fact that nearly two thirds of its length is devoted to issues not directly raised by the facts of the case and which consequently must be taken to be obiter statements. Yet, within those obiter statements can be discerned an intent to fundamentally disturb the role of legitimate expectations, as well as its application as articulated in the Teoh decision.

While the sheer length of obiter comments is concerning in itself, this prelude to the demise of Teoh and the confinement of legitimate expectations generally can be shown to rest on the application of flawed reasoning ill-suited to the public law context. In particular, private law concepts such as estoppel have been employed by the court in a manner that lends itself to an assessment of substantive (as opposed to procedural) unfairness. For reasons concerning both the legitimacy of the court’s role in conducting judicial review, as well as consistency in administrative decision-making generally, it is argued that this trend should be resisted. In addition, it is submitted that the tendency of the court in Lam to conflate the question of whether there has occurred a breach of procedural fairness with the question of whether a discretionary remedy should be granted has only added to the confusion surrounding Lam.

2. Historical Background: The Decision in Teoh

Like Mr Lam, the applicant in Teoh had been subject to a deportation order following a criminal conviction for importing heroin into Australia. The facts and proceedings of Teoh are outlined extensively by commentators elsewhere,[5] and need not be reproduced here. It may be stated, however, that Mr Teoh was essentially the responsible parent for seven Australian-born children (including Mr Teoh’s biological and step-children). What is important in the present context is to revisit the legal principles established in Teoh’s case, and in particular the dissenting view of McHugh J in Teoh. Consequently, the separate judgments of Toohey and Gaudron JJ will not be addressed in the present paper.[6]

At one level, the majority of the High Court simply rearticulated the existing principles regarding the legitimate use that may be made of unincorporated international treaties in Australian law. Thus, as Mason CJ and Deane J stated:[7]

[T]he fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party,[8] at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.[9]

Their Honours also referred to the accepted use that may be made of international instruments in the development of the common law:[10]

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.[11] But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.

In these respects, the majority judgment was uncontroversial. The principal legal controversy concerned the question of whether ‘Australia’s ratification of the Convention [on the Rights of the Child] ... [could] give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention.’[12] The fact that the majority of the court, including Mason CJ and Deane J (together with Toohey J who delivered a separate judgment), answered this question in the affirmative, was what created the controversy surrounding the decision.[13] In addressing the question posed, the joint judgment offered the following reasoning:

[R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act,[14] particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention[15] and treat the best interests of the children as “a primary consideration”. [Emphasis added.]

In relation to the expectation identified in Teoh, the fact that an individual may not have been aware of the Convention’s existence would not preclude the expectation from arising.[16] For Mason CJ and Deane J, it was enough that the expectation was ‘reasonable in the sense that there are adequate materials to support it’.[17] The effect of the legitimate expectation was not to create a binding rule of law, whereby a decision-maker was compelled to act in conformity with the Convention. Such a result would have involved the incorporation of the Convention ‘by the backdoor’ and would have linked the effect of the legitimate expectation with substantive outcome, rather than with the procedures to be adopted.

This distinction is critical in administrative law, and stems from the separation of powers in Australia. Judicial review of administrative action by the courts is limited to consideration of the legalities of decision-making, rather than the actual merits of the case — which is an administrative function to be performed by the executive.[18] Indeed, it is by virtue of the existence of a constitutional separation of powers in Australia that the decision in Coughlan stands at odds with Australia’s constitutional framework, and is unlikely to be followed here.

The actual effect of the legitimate expectation identified in Teoh was not of this class of decision, however. It did not involve a development of the law in conflict with the constitutional separation of powers. The effect of the legitimate expectation in Teoh’s case was limited to a procedural guarantee, which was itself premised upon the right of the decision-maker to act inconsistently with a treaty obligation. Where a decision-maker proposed to decide a matter inconsistent with a legitimate expectation, procedural fairness would require that any persons affected be given notice and an adequate opportunity of presenting a case against such a course of action.[19]

However, in the High Court’s decision in Teoh, Justice McHugh delivered a strong dissenting judgment, that treated the legitimate expectation identified by the majority as one involving the substantive protection of the treaty, rather than being concerned with procedural requirements. He began his discussion of the issue with the following statements:

In my opinion, no legitimate expectation arose in this case because: (1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation; (2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule; (3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art 3.[20]

Obviously the point from which McHugh J departed was, therefore, entirely different from that of the majority. From the very outset then, they were approaching the question from different perspectives. In his judgment, McHugh J also questioned several aspects of legitimate expectations. First, his Honour questioned the practical role for the doctrine following the decision in Kioa v West,[21] where the High Court had adopted a broad approach to the types of interests sufficient to enliven procedural fairness requirements. While this is an accurate analysis of the position since Kioa regarding what is referred to as the ‘threshold test’, it is submitted that the doctrine of legitimate expectations must still play a role in determining the content of procedural fairness requirements in any given case.

The other criticism contained in McHugh J’s judgment, concerned the objective nature of the expectation in Teoh. For McHugh J, the subjective state of mind of an individual affected by a decision should be treated as relevant to whether the expectation is ‘objectively reasonable’, as the following statement indicates:

It must be an expectation that is objectively reasonable for a person in the position of the claimant. But that does not mean that the state of mind of the person concerned is irrelevant. ... If a person does not have an expectation that he or she will enjoy a benefit or privilege or that a particular state of affairs will continue, no disappointment or injustice is suffered by that person if that benefit or privilege is discontinued. A person cannot lose an expectation that he or she does not hold. [Original emphasis.][22]

Clearly, the reasoning in HcHugh J’s dissenting judgment stands directly at odds with that of the majority. However, following changes in the membership of the High Court since 1995, and with McHugh J being the only judge remaining from the Teoh decision, Lam provided an opportunity to again test the reasoning of the majority in that case. Though, as has been pointed out, Teoh was not relied upon in argument (as no legitimate expectation was premised upon the ratification of a treaty), in 2003 McHugh J found himself on a bench and among judges sympathetic to the views he had earlier expressed in dissent. It is against this background, that the decision in Lam must be considered.

3. The Factual Background in Lam

Mr Lam, the applicant, was born in Vietnam but had arrived in Australia as a 13 year old refugee in 1983. On arrival he was granted a Transitional (Permanent) Visa, which was cancelled on 23 January 2001 pursuant to a decision of the Minister under s501(2) of the Migration Act 1958 (Cth). The applicant had been convicted of several criminal offences, the most serious of which had been trafficking in heroin for which Mr Lam had been sentenced to eight years imprisonment. As a consequence, the applicant had failed to meet the character test contained in s501(6) of the Act, and became liable to deportation.

The proceedings before the High Court involved an application for orders of certiorari and prohibition under s75(v) of the Constitution, to quash the Minister’s decision and to prevent the Minister from taking steps to deport Mr Lam. The major argument presented by counsel for the applicant involved an allegation of want of procedural fairness, based on the failure of a departmental officer to follow an announced procedure. The relevant facts were as follows.

Mr Lam, although unmarried, was the father of two girls, both of whom had been born in Australia in 1989 and 1993 respectively, and who were Australian citizens. Mr Lam had been estranged from the girls’ mother for some time, and the girls had been living with relatives for much of Mr Lam’s period of imprisonment. Mr Lam had entered into another relationship with an Australian woman and was engaged to be married.

In September 2000 an officer of the Department of Immigration and Multicultural Affairs had written to Mr Lam indicating that his visa may be liable to cancellation under s501 of the Migration Act 1958 (Cth). In the letter, details of the legislation had been set out, an opportunity for Mr Lam to comment prior to any decision of the Minister was given, and a list of relevant matters to be taken into account in making a decision under s501 was set out. Those matters included ‘the best interests of any children with whom you have an involvement’.

Mr Lam exercised his right to comment on the matters relevant to the decision to be made, in what Gleeson CJ referred to as a lengthy submission ‘obviously prepared with skilled assistance’.[23] The applicant’s letter was dated 30 October 2000. On the matter relating to his children, the applicant provided information regarding his daughters and their current circumstances, and advanced arguments as to why their interests required that he not be deported. These arguments included the fact that the girls had no contact with people from Vietnam, that they were happily settled in Australia, that he planned to marry upon his release from prison, and that the children would have to be cared for by the state were he to be deported.[24] Annexed to Mr Lam’s letter, were letters from both his fiancée and from the children’s carers, represented in this case by a letter from Ms Tran. The letter from the carer supported the facts raised in Mr Lam’s letter regarding the children’s circumstances, and his arguments related to his deportation. In particular, the letter indicated that the welfare of the children would be best served in the long term if the children were cared for by Mr Lam and his fiancée.

On 7 November 2000, an officer of the ‘Character Assessment Unit’ within the Department wrote to Mr Lam, stating the following:[25]

The United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the children shall be a primary consideration.

Would you therefore kindly provide the full name, address and telephone number of the children’s carers. The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa.

Would you please provide the full contact details of the mother of the children as well.

Though Mr Lam replied with the appropriate information, the Department chose not to take any steps to contact the children’s carers, opting to prepare a document for the Minister on the information already in their possession. No problems arose in relation to the contents of this document, only in relation to the Department’s failure to contact the carer of the children. Because of this it was argued that procedural fairness was not provided, as Mr Lam had not been informed of the decision not to contact the carer. This was argued despite the fact that no evidence was directly led indicating that Mr Lam ‘was misled into taking or failing to take some step, or deprived of an opportunity to advance his case in some way’.[26]

The transcripts of the hearing before the High Court indicate that evidence concerning the language background of the children and of their capacity to integrate into Vietnamese society could have been introduced.[27] This evidence was not directly used to argue a denial of procedural fairness. Rather, it was left open for the court to find that the absence of an opportunity to present further evidence was insufficient. The basic premise of the applicant’s case was that Mr Lam was denied procedural fairness, as he had a legitimate expectation created by the letter of 7 November that was not fulfilled. While the decision-maker was not bound to comply in substance with that expectation, the argument presented was that Mr Lam should have been notified of the decision not to follow through with the representation made to Mr Lam, affording him an opportunity to respond.[28] The argument was rejected by the High Court, and the reasoning in each of the separate judgments is outlined below.

4. Chief Justice Gleeson

Chief Justice Gleeson accepted that in some circumstances procedural unfairness will result where an administrative decision-maker states to a person affected an intention to take a procedural step and fails to do so without warning the person affected of the change in intention. His Honour rejected, however, that procedural unfairness would result in all cases where such a change was made from the stated intention. His reasoning was largely premised on the discretionary nature of the remedies sought, including certiorari and prohibition, as well as the actual requirement of fairness. According to Gleeson CJ:[29]

There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision; but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances. That cannot be correct. To begin with, it overlooks the discretionary nature of the remedies of certiorari and prohibition.[30] And, in any event, it requires the concept of legitimate expectation to carry more weight than it will bear. If such a proposition were accepted, it would elevate judicial review of administrative action to a level of high and arid technicality.

In approaching the present case, Gleeson CJ referred to the Privy Council’s decision in Attorney-General (Hong Kong) v Ng Yuen Shiu,[31] and the decision of Dawson J in Attorney-General (NSW) v Quin.[32] For Gleeson CJ, those two decisions stood for the proposition that ‘when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise’.[33] What needed to be shown before the remedies of certiorari and prohibition would be granted was, for Gleeson CJ, actual unfairness rather than ‘[a mere] departure from a representation’.[34] As his Honour emphatically stated, ‘[n]ot every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation’.[35] Gleeson CJ’s concept of fairness directly correlated with what the applicant was entitled to expect on the part of the decision-maker. He considered that fairness did not require departmental officers to contact Mr Lam prior to changing their minds about contacting the girls’ carer.[36] This conclusion was partially based on supposition from the facts, as the following extract shows:[37]

[T]here could have been a number of reasons why they might change their plans, without necessarily having to inform the applicant. Let it be supposed, as may well be the case, that they changed their minds because they realised that they had already heard from Ms Tran, they did not doubt what she had to say, and it was unlikely that there was anything she could usefully add to what had already been said. ... The applicant does not seek to show that such a view was not reasonably open. I do not accept that it would have been reasonable to expect the department to write to the applicant if for any reason there was a change of plan about contacting Ms Tran.

In his judgment Gleeson CJ clearly articulates the concept of ‘detriment’ upon which his requirement of ‘unfairness’ rests.[38] In addition, the existence of a subjective expectation was employed to indicate the specific representation upon which a person relies to their detriment, and which consequently results in unfairness.[39] According to Gleeson CJ:

[I]t is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concept of the law is to avoid practical injustice.

No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness.[40]

The notions of reliance and detriment to which his Honour refers are taken from the doctrine, more appropriately applied in private law, of estoppel. In addition, the reference to ‘subjective expectation’ highlights the individual applicant’s actual expectation over any objective or constructive expectation. This emphasis narrows the consequences of representations or undertakings by administrative decision-makers to those that directly and personally relate to the applicant’s case. It ‘privatises’ the notion of expectation in administrative law.

The problem with employing private law concepts within a public law setting rests directly with the limitations of judicial review. The fact that consideration by a court into the actual detriment suffered by an individual tends towards a consideration of the actual merits of a case,[41] offers a significant caution against its use in cases involving legitimate expectation. Indeed, as Aronson and Dyer have observed, there has been a distinct avoidance of such inquiries in cases involving legitimate expectations. While, like Gleeson CJ, they treat the primary consideration as being what fairness requires in the circumstances, rather than actual compliance with an undertaking or representation,[42] for Aronson and Dyer, the presence of reliance and detriment may affect the content of procedural fairness, but it is not critical to whether procedural fairness was denied.[43] This issue was aptly raised in the hearing before the High Court in a passage between Mr Walker (Counsel for the Applicant) and Gleeson CJ:

GLEESON CJ: Well, a possible point of view — to paraphrase a proposition from the law of contract — is that an unrelied on representation is a thing writ in water.

MR WALKER: Yes, that is a possible point of view, your Honour. This case certainly raises for consideration whether or not there are sufficient analogies with representational causes of action in, most species of estoppel, so as to give rise to a requirement of what I will call actual psychological belief, on the basis of which specified acts or omissions took place. In our submission, it would be a misstep and error for this Court to confine administrative law, in relation to procedural fairness aspects of natural justice, in that fashion.[44]

The role of estoppel in the context of administrative law raises particular problems. As Gummow J stated in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic, ‘there are considerable difficulties in the way of propounding an estoppel against the exercise of an administrative discretion’.[45] As a doctrine that has evolved in private law, estoppel has a limited application in administrative law given that it cannot operate to prevent or limit the exercise of a public duty or discretion granted under statute.[46] Mason CJ extended this principle to all public powers whether they are sourced in statute, prerogative or the common law in Attorney-General (NSW) v Quin.[47] Gummow J, however, raised the possibility of a distinction between powers or discretions which fall within the object of the statute (the ‘policy’ basis of the power or discretion), and operational decisions which relate to the implementation of the core statutory powers and discretions — the latter perhaps attracting the application of estoppel.[48] His Honour made the following qualified statement on this point:

Where the public authority makes representations in the course of implementation of a decision arrived at by the exercise of its discretion, then usually there will not be an objection to the application of a private law doctrine of promissory estoppel. It must, however, be recognised that it may be difficult, in a given case, to draw a line between that which involves discretion and that which is merely “operational”.[49]

The analysis of Gummow J in Kurtovic of the role of estoppel in administrative law highlights, therefore, the potential for certain ‘operational’ public powers to attract the private law doctrine of estoppel. While this of itself may be problematic, given the difficulty in identifying ‘operational’ powers, the need to establish detrimental reliance raises even more problems. Gummow J was of the view that detrimental reliance would be just as relevant in public law as in private law. In doing so, he rejected the competing view that ‘the citizen is entitled to expect public authorities and those they employ to deal with the public will keep their word and act within their authority, so that detrimental reliance is not necessary’.[50] However, as the analysis below outlines, private law notions such as detrimental reliance raise considerable problems when applied in an administrative law context.

What Gleeson CJ does in the Lam decision is utilise private law concepts in establishing a threshold for breaches of procedural fairness where a decision-maker makes a representation regarding procedure. In doing so, he introduces a concept of substantive ‘unfairness’ into the question of whether a breach has occurred, rather than placing it within the question of whether the discretionary remedy should, or should not, be granted. In taking this perspective in Gleeson CJ’s judgment, one is not asserting that a decision-maker is bound to act consistently with the representation made to an individual regarding procedure. It is simply to accept that such a representation will affect the content of procedural fairness, and what the hearing rule will entail in the circumstances. Taking Gleeson CJ’s perspective, the representation will only affect the content of procedural fairness to the extent that a breach occurs, and a breach will only ever occur where the individual to whom the representation was made has relied upon the representation to his or her detriment. In Lam’s case, no detriment had occurred despite the fact that Mr Lam had been denied an opportunity to reconsider his position and whether further evidence should have been submitted on his behalf. As already mentioned, further evidence was available to be tendered. However, it appears that Gleeson CJ was convinced that any further evidence would not have advanced Mr Lam’s case.[51]

There are several issues of concern in relation to Gleeson CJ’s approach. First, the court is drawn into considerations of reliance and detriment, which have the potential to draw the court into issues touching upon the merits. Secondly, the court is forced to consider, in relation to whether a breach has occurred, the issue of ‘unfairness’ in actual outcome, which is more appropriately taken as a matter hinging upon the discretion to grant or deny a remedy. Thirdly, by setting such a high threshold for breaches of procedural fairness where a decision-maker makes a representation to an individual regarding procedure, Gleeson CJ gives priority to administrative efficiency over good administrative practices. In cases such as Lam, what matters is that an individual be informed of any departure from a stated representation as to procedure in order to prevent any reliance upon it in the first place. The decision-maker need not comply with the representation, but should inform the individual that a change in stated procedure is to occur, which would give the individual an opportunity to reconsider their case and to take further action in support of their case if desired. Being denied this opportunity is what constitutes the breach of procedural fairness (rather than departure from the stated intention), whereas detrimental reliance will simply exacerbate any breach.

While Gleeson CJ’s judgment may be criticised on this basis, he refrained from questioning the High Court’s previous decision in Teoh. He also accepted the fact that counsel had not ‘explicitly’ argued for any substantive protection arising from legitimate expectations, and consequently, limited his comments on the decision of the English Court of Appeal in R v North and East Devon Health Authority; Ex parte Coughlan.[52] Gleeson CJ did, however, raise the idea that ‘substantive expectations’, in the sense that a decision-maker is bound to act in a manner consistent with a legitimate expectation, could not be as easily found in Australia as in the United Kingdom. In considering that the applicant in Lam had invoked the jurisdiction under s75(v) of the Constitution in seeking judicial review, his Honour made the following comments:

That jurisdiction exists to ensure that exercises of power by officers of the Commonwealth conform to law. The scope of the concept of abuse of power, insofar as it may embrace substantive unfairness of the kind considered in Coughlan, and its relation to s 75(v) of the Constitution, was not the subject of argument, and does not arise for decision. It is a subject that may involve large questions as to the relations between the executive and judicial branches of government.[53]

While Gleeson CJ felt that the applicant’s argument came close to approaching ‘an attempt to convert a procedural expectation into something substantive’,[54] his Honour accepted that it did not go so far as to attract criticism on that basis. The applicant’s argument had been qualified by the concession that a decision not to follow the stated procedure would be acceptable provided that the applicant was notified of that change. Consequently, Gleeson CJ held that it did not incorrectly treat the legitimate expectation as requiring a decision-maker to act in a particular way — an approach that was ‘tantamount to treating it as a rule of law’.[55] Such an approach had been explicitly rejected by Mason CJ and Deane J in Teoh.[56] In respect of Mr Lam’s application, Gleeson CJ dismissed the case with costs.

5. Justices McHugh and Gummow

The tenor of the joint judgment delivered by McHugh and Gummow JJ is indicated very early in the decision when their Honours state that the notion of legitimate expectations, while serving the purpose of standing rules well, ‘remains of limited utility elsewhere’.[57] However, the observation that the argument of the applicant ‘invites attention to the doctrine of “legitimate expectation” gives little indication of the full extent of their Honour’s critique of the concept and its application in Teoh that follows. To find a clear indication to that effect one need only peruse the transcript of the hearing before the High Court. During questioning, counsel for both parties were drawn into considering cases not even relied upon, nor directly relevant to the proceedings. Included were the decisions in both Teoh and Coughlan. While McHugh J’s strong dissent in the Teoh decision already offered a clear indication of his views on the subject, Gummow J’s questions had offered a unique insight into his own thoughts on the subject of legitimate expectation. After drawing Mr Gageler (counsel for the respondent), into a discussion on the Teoh decision, Gummow J made the comment ‘I cannot go on writing judgments about things I do not understand’.[58]

A. Coughlan and Substantive Protection

Despite the fact that no reliance was placed on the decision in Coughlan,[59] and no attempt was made by the applicant to argue for any substantive protection to be granted under the rubric of legitimate expectation, McHugh and Gummow JJ addressed those matters in detail. Their Honours summarised the English developments as follows:

The doctrine of “legitimate expectation’ has been developed in England so as to extend to an expectation that the benefit in question will be provided or, if already conferred, will not be withdrawn or that a threatened disadvantage or disability will not be imposed. This gives the doctrine a substantive, as distinct from procedural, operation.[60]

In referring to the decision of Mason CJ in Attorney-General (NSW) v Quin,[61] where it was held that natural justice did not entitle an individual to substantive protection in the form of an order requiring a decision-maker to act in a particular way, their Honours stated:

That remains the position in this Court and nothing in this judgment should be taken as encouragement to disturb it by adoption of recent developments in English law with respect to substantive benefits or outcomes.[62]

In considering Coughlan, their Honours noted the link between the doctrine of legitimate expectation and substantive benefits, with the notion of unfairness amounting to an “abuse of power”, and questioned its application within an Australian constitutional context:

The notion of “abuse of power” applied in Coughlan appears to be concerned with the judicial supervision of administrative decision-making by the applications of certain minimum standards now identified by the English common law. These standards fix upon the quality of the decision-making and thus the merits of the outcome. As was indicated in Coughlan itself, this represents an attempted assimilation into the English common law of doctrines derived from European civilian systems.[63]

In distinguishing the English development with the Australian setting, their Honours referred to decisions in both New Zealand and Canada on the matter. In particular, they offered support for the decisions of the Canadian Supreme Court in Baker v Minister of Citizenship and Immigration[64] and Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services).[65] Quoting from the latter case, their Honours extracted the following comments from the decision of Binnie J:

It thus appears that the English doctrine of legitimate expectation has developed into a comprehensive code that embraces the full gamut of administrative relief from procedural fairness at the low end through ‘enhanced’ procedural fairness based on conduct, thence onwards to estoppel (though it is not to be called that) including substantive relief at the high end, ie, the end representing the greatest intrusion by the courts into public administration ....

In ranging over such a vast territory under the banner of ‘fairness’, it is inevitable that sub-classifications must be made to differentiate the situations which warrant highly intrusive relief from those which do not. Many of the English cases on legitimate expectations relied on by the respondents, at the low end, would fit comfortably within our principles of procedural fairness. At the high end they represent a level of judicial intervention in government policy that our courts, to date, have considered inappropriate in the absence of a successful challenge under the Canadian Charter of Rights and Freedoms.[66]

What is astounding about their Honours’ judgment is the length to which they felt it necessary to address an issue that was not relied upon by the applicant, and indeed, which was explicitly rejected by Counsel in argument. The extent of obiter comments made within their Honours’ judgment was, however, not limited to the developments most noticeably observed in the Coughlan decision. The decision in Teoh did not escape their attention either.

B. The Decision in Teoh

Both McHugh J’s dissent in the original Teoh[67] decision, together with Gummow J’s obvious concern with the doctrine, expressed at the Lam hearing,[68] gave some insight into their desire to revisit the principles upon which Teoh was decided. However, Lam was not actually a case on point which enabled them to effectively re-consider the judgment itself, as it contained no legitimate expectation arising from the act of treaty ratification. The decision itself was decided in a post-Teoh context,[69] and consequently consideration of the relevant Convention had already been built into the decision-making process. Not only did the applicant not rely upon Teoh in that sense, but the respondent actually rejected that it had been relied upon also. Nonetheless, McHugh and Gummow JJ employed a strained logic to justify their consideration of the doctrine in Teoh:

Counsel for the Minister disclaimed any direct attack on Teoh because, as he understood it, the applicant did not rely upon that case. ... Nevertheless, the applicant’s submissions invited comparison with what was decided in Teoh. In particular, the applicant relied upon a strand in the reasoning of Mason CJ and Deane J, and Toohey J. This was that the absence of any particular “psychological effect” on the affected person or any other individual of knowledge of Australia’s adherence to the international obligations under the treaty in question was no impediment to the decision that there was a want of procedural fairness [footnote excluded].[70]

The actual reliance on the point established in Teoh regarding the absence of an actual subjective awareness or knowledge of the legitimate expectation was actually not relevant to the facts in Lam. The expectation was an actual expectation implied through the correspondence sent to Mr Lam by the relevant departmental officers. Notwithstanding this fact, references to “psychological effect” at the earlier hearing were taken as a sufficient basis for their Honours to venture over the state of mind element considered in Teoh. In doing so, they sought to distinguish the expectation in Teoh from other ‘legitimate’ or ‘reasonable’ expectations, which included expectations involving ‘an actual or conscious appreciation that a benefit or privilege is to be conferred or a particular state of affairs will continue’.[71] Their Honours considered that:

It is one thing for a court in an application for judicial review to form a view as to the expectations of Australians presenting themselves at the gates of football grounds and racecourses. It is quite another to take ratification of any convention as a “positive statement” made “to the Australian people” that the executive government will act in accordance with the convention and to treat the question of the extent to which such matters impinge upon the popular consciousness as beside the point.[72]

Even more pointedly, their Honours made the following claim:

Haoucher does not stand beside Teoh. In the former case there was a statement made in the Parliament bearing immediately upon the exercise of the particular power in question. In Teoh there were in the Convention various general statements and there was no expression of intention by the executive government that they be given effect in the exercise of any powers conferred by the Act.[73]

This point is directed to an issue of controversy that arose in the aftermath of Teoh, namely, whether Teoh involved the application of, or a significant extension of, the decision in Haoucher.[74] This issue draws on the categorisation of treaty ratification with a considered statement of government policy.[75] In Haoucher, a legitimate expectation was held to have existed on the basis of the contents of a published policy statement.[76] Commentators such as Allars[77] and Twomey[78] have argued that Teoh is consistent with the earlier decision in Haoucher, on the basis that the act of ratification is akin to a considered statement of policy. Other commentators, such as Aronson and Dyer,[79] have argued to the contrary. It would appear that the present High Court have serious reservations also in relation to that analogy.

Essentially the concern with Teoh rested on the fact that a significant expectation could arise by virtue of the act of ratification alone, and even in cases where an individual affected by a decision had no knowledge of the expectation itself. Their Honours did, however, accept the more conventional effects of an unincorporated treaty in domestic law, including its role in assisting with statutory interpretation, and where ratification is coupled with an additional step in the conduct of foreign affairs.[80] What ultimately emerges as their major concern with the decision, is the fact that they interpret it as introducing mandatory considerations relevant to procedural fairness, and consequently, as overstepping the legitimate bounds of judicial review derived from the Constitution:

[I]n the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. The curiosity is that, nevertheless, such matters are to be treated, if Teoh be taken as establishing any general proposition in this area, as mandatory relevant considerations for that species of judicial review concerned with procedural fairness.

The reasoning which as a matter of principle would sustain such an erratic application of “invocation” doctrine remains for analysis and decision. Basic questions of the interaction between the three branches of government are involved. One consideration is that, under the Constitution (s61), the task of the Executive is to execute and maintain statute law which confers discretionary powers upon the Executive. It is not for the judicial branch to add or vary the content of those powers by taking a particular view of the conduct by the Executive of external affairs. Rather, it is for the judicial branch to declare and enforce the limits of the power conferred by statute upon administrative decision-makers, but not, by reference to the conduct of external affairs, to supplement the criteria for the exercise of that power. [footnote excluded, emphasis added.][81]

With respect, the first italicised statement in the above quote contains an incorrect interpretation of the judgment in Teoh. Nowhere in that decision did any of the majority judges consider a ratified convention as imposing a mandatory consideration upon decision-makers — merely that any decision inconsistent with the convention’s terms would necessitate the need for a hearing by the individual concerned. Indeed, in this respect, it appears that their Honours have adopted a rather strained reading of the decision itself. However, their concern is obviously with respect to the practical effect of the Teoh principle, which makes a convention a relevant consideration that must be taken into account by a decision-maker. The distinction that needs to be made (and which is not made by their Honours) is that the real effect of Teoh is the creation of a procedural obligation where departure from a treaty is intended. In that sense, the treaty becomes a mandatory relevant consideration. That, however, is quite distinct from asserting that the treaty itself constitutes a mandatory consideration that requires substantive compliance with its terms.

The procedural obligation in Teoh is activated upon a decision to act inconsistently with a treaty, and is actually premised on the freedom of a decision-maker to act in non-compliance with the treaty’s terms. It may be that a minimal (in the sense of being procedural) negative guarantee for the substantive terms of a treaty is effected by the decision in Teoh. However, this in entirely consistent with the Court’s traditional approach to the relevance of international law in Australia. Principles, that include the presumption that parliament does not intend to act in contravention of its international obligations, and that parliament must be expressly clear when intending to remove common law rights and freedoms, have long been used by Australian courts in relation to the interpretation of statutes. While Teoh concerned the actions of the executive, rather than parliament, a parallel can be drawn between the minimal, procedural guarantee identified in Teoh and the interpretive rules mentioned.

With respect to the second italicised statement above, the focus is misleadingly placed on the discretionary power as having been modified, rather than on the modification to the content of procedural fairness (which concerns the exercise of the power, rather than its actual scope). These matters are distinct, though it appears that McHugh and Gummow JJ have treated procedural fairness requirements based on ‘external affairs’ as involving an impermissible limitation being placed on the exercise of discretionary power. Given the acceptance by their Honours in Plaintiff S157/2002 v Commonwealth[82] that breaches of procedural fairness constitute jurisdictional error, it appears that the element of ‘external affairs’ is what troubled their Honours in Lam. Indeed, the second italicised statement referred to is extremely difficult to reconcile with several lines of authority regarding the use of international law, as well as the court’s role in identifying the scope of statutory power.

C. Mr Lam’s Application

Having taken 38 paragraphs to consider issues not directly raised in argument, McHugh and Gummow JJ took only four paragraphs to address the application of Mr Lam. In doing so, they accepted that the failure to carry through with an act that the departmental officer had said would be done, involved the failure to observe an expectation reasonably attributable to the applicant.[83] However, rather than choosing not to grant a remedy which would have been available given the discretionary nature of the remedies sought, their Honours refused to find that a denial of natural justice had occurred, dismissing the application. In this respect, their Honours came close in approach to that of Gleeson CJ. Like the Chief Justice’s, their reasoning is also subject to the criticism that their approach incorporates a notion of detriment and unfairness in outcome, despite their acceptance of fairness in procedure as being the fundamental issue for the Court.[84] They addressed the issue of a denial of natural justice as follows:

But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is the decision-making process not the decision, as Lord Brightman put it. What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken.

The applicant by the statement in the letter to him ... did not acquire any vested right to oblige the Department to act as it indicated ... It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice [emphasis added, footnote excluded].[85]

Essentially this approach rests upon notions of reliance and detriment, which go extremely close to entailing an examination of the merits of a case. It appears that this has probably resulted from the fact that the issue of breach has been conflated with the issue of discretion to grant the remedy sought. The more appropriate manner of considering the issues before the Court would have been to consider the issue of breach separately from the issue of remedies, as the latter question requires the Court to consider substantive issues to a degree. The discretionary nature of the remedies available lends itself to such an approach, and has the added benefit of avoiding a situation where principles more apt to a private law context are not employed in a public law setting where judicial review is constitutionally limited. Had McHugh and Gummow JJ been serious about their concern for fairness within the process rather than the outcome, they would have focussed on the absence of an opportunity to make submissions or present new material, rather than on the absence of evidence of any additional material itself that may have been presented. The former is concerned with the procedural aspects of the decision-making process, the latter with the substance or merits of the decision. Indeed, counsel for the applicant mentioned in argument potential matters that new material could have been put forward. In particular, evidence of the language background of the Lam children and of their ability to effectively integrate into Vietnamese society were matters that could have been further considered.[86]

What is meant, however, by the statement that reliance, detriment or unfairness in outcome are more appropriately considered in relation to the discretionary remedy? This notion draws upon the authority of previous High Court decisions in Re Refugee Tribunal; Ex parte Aala,[87] and Stead v State Government Insurance Commission.[88] Each of these cases is relevant to the discretionary nature of the remedies available for denials of natural justice, with the decision in Aala specifically concerned with the constitutional writs available under s 75(v) of the Constitution. Interestingly, the case of Stead is of only limited relevance in an administrative law context as it concerned the discretion of a superior court to order a new trial where a party had been denied an opportunity to make submissions at a previous criminal trial. To the extent that the unanimous judgment concerned the issue of discretionary remedies for breaches of natural justice, however, the High Court has affirmed its relevance in Aala.[89] The main principle taken from Stead is as follows:

[N]ot every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.[90]

This case obviously did not involve the exercise of judicial review of administrative action, as in Aala. In that more recent case, Kirby J articulated the principle in that context as follows:

Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness “could have made no difference” to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be “no easy task” to convince a court to adopt it.[91]

In considering the rationale underlying the principle, Kirby J continued:

It does not assure the victim of the breach of ultimate success. But it does assure that person of the privilege belonging to all those affected by the deployment of power by officers of the Commonwealth. This is that such officers will only act in accordance with their lawful mandate. The exception, accepted by Stead, is held in reserve to guard against insignificant, purely formal and immaterial mistakes. Unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief. [Emphasis added.][92]

If one applies this principle to the facts of Lam, one may acknowledge the technical breach of procedural fairness at the same time as acknowledging a principled basis for denying the remedy as sought by Mr Lam. While the applicant could have made further submissions, in light of the substantial submissions already presented on his behalf, it is unlikely that any further evidence would have modified the outcome of the decision-making process. In this sense, one may distinguish the facts in Lam from those in Aala, where it could not be so concluded. The problem with the decision in Lam, is that it appears to be distinguishable from Aala on the basis that no reliance or detriment could be found to exist on the facts in Lam.[93] However, the absence of detrimental reliance in Lam is only properly seen as being relevant to whether or not the remedy sought should indeed be granted.

To view the issue in this light is to acknowledge that unfair procedures need not necessarily result in an unfair outcome. However, the Court in Lam effectively adopted an approach that unfair procedures were to be treated as fair provided that a substantively unfair result did not occur. Such retrospective reasoning should be questioned, especially given that it may encourage poor administrative practices. Indeed, the Court’s role in identifying and developing principles in this area should be premised on notions of good administration that recognise the ‘public’ nature of administrative law. Administrators should be able to look to general rules, guidelines and benchmarks that offer the minimum standard with which decision-makers must comply in order to ensure consistency and fairness in the circumstances of each case. Principles that rest on the subjective assessment of the decision-maker as to whether unfairness may result (as in Lam), or upon a retrospective assessment of unfairness by the courts, do little to encourage such practices in administrative decision-making.

6. Justice Hayne

The judgment of Justice Hayne is a particularly interesting one. In making reference to the criticisms or concerns of McHugh and Gummow JJ, the judgment is unhelpful, and merely adds further confusion to matters that were not actually raised by the case. However, Hayne J is more direct than any of the other judges in addressing some of the underlying concerns, and consequently, in pointing to the basis upon which many of the concerns were raised. Hayne J indicates very early in his judgment that he is not in favour of the development of the doctrine of legitimate expectation over time, from one linked to interests attracting procedural fairness, to one that directly affects the content of procedural fairness. Consequently, his approach limits the relevance of the legitimate expectation. As his Honour reasons:

If the procedure was fair, reference to expectations, legitimate or not, is unhelpful, even distracting.

Confining the description of the events and circumstances to those I have mentioned omits reference to two critical matters. First, the applicant accepted that, but for what the Department said it would do, procedural fairness would not have required the Department to interview the carer. Secondly, he did not suggest that, had he known that the Department would not contact his children’s carer, he would have submitted any additional material or argument.[94]

Taking this approach, Hayne J reduced the content of procedural fairness by removing the relevance of the legitimate expectation in determining what fairness required. The fact that Mr Lam had been given a sufficient opportunity to be heard satisfied the requirements of procedural fairness, and Mr Lam’s conduct was not modified by any failure to follow the procedure of contacting the children’s carer:

The applicant was given the opportunity to submit, and did submit, all the material and all the arguments that he wanted to submit before the decision was made. The Department’s statement that it intended to contact the children’s carer did not cause the applicant to alter his conduct in any way. In particular, it did not cause him to refrain from substituting for, or adding to, the material and argument he had already submitted.[95]

In this sense, Hayne J is able to avoid some of the criticism levelled against the preceding judgments on the basis that he does not rely on notions of reliance and detriment to avoid the procedural requirements that arise by virtue of the legitimate expectation. The expectation itself is irrelevant in determining the content of procedural fairness. However, this approach is almost artificial, as an undertaking made by a decision-maker, whether or not it is seen as generating a ‘legitimate expectation’, must, like a policy statement or other conduct, affect the content of procedural fairness. The legitimate expectation is merely a label attached to the action or conduct of a decision-maker relevant to the decision-making process. Its utility, even necessity, as a label in this context is certainly open to question, but one cannot deny the relevance of the action or conduct in determining the requirements of procedural fairness by simply rejecting the role of legitimate expectation here.

When the approach of Hayne J is viewed in this light, the same criticisms levelled at the other judgments may also be levelled at his Honour’s. The notion of what procedural fairness requires is assessed retrospectively, and the actual presence or absence of some indication that an individual would have acted differently is the ultimate issue. In other words, the presence of actual detriment becomes significant. This approach comes extremely close to review on the merits. Judicial review for want of procedural fairness should be limited to the procedural aspects, rather than substantive questions. What should really have been at issue in Lam, was not whether there existed other evidence which Mr Lam would have presented, or additional steps he would have taken in light of the failure to follow a stated procedure, but whether he was denied an opportunity to do so. The Court’s role was not to review the quality or merits of his case but the fairness of the procedures taken.

Despite having taken a narrow view of legitimate expectation, and thereby limiting its relevance in determining the content of procedural fairness, Hayne J qualifies that statement, and considers what would be the outcome were the letter to Mr Lam capable of generating a legitimate expectation:

[I]t is enough to say that ... departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department’s letter raised no new matter to be taken into account in making the impugned decision. ... Unlike Teoh, this was not a case where the course of decision-making could be said to have diverged from any announced policy to be taken to account in making the relevant decision.[96]

A. The Decision in Teoh

Unlike McHugh and Gummow JJ, Hayne J did not go into a detailed critique of the Teoh decision. He did, however, indicate that there were many issues relating to legitimate expectations generally that remained to be considered, and that the application of the Teoh principle stood to be limited or confined in some way. However, Hayne J was not as quick to reject the reasoning in Teoh altogether, but left open the potential for its review, and potential refinement and limitation. On these points, his Honour made the following statements:

[Used in its broader sense] legitimate expectation is a phrase which poses more questions than it answers. What is meant by “legitimate”? Is “expectation” a reference to some subjective state of mind or to a legally required standard of behaviour? If it is a reference to a state of mind, whose state of mind is relevant? How is it established? These are questions that invite close attention to what is meant by legitimate expectation and what exactly is its doctrinal purpose or basis. Not all are dealt with explicitly in Teoh. At the least they are questions which invite attention to the more fundamental question, posed by McHugh J in Teoh, of whether legitimate expectation still has a useful role to play in this field of discourse now that it has served its purpose in identifying those to whom procedural fairness must be given as including more than persons whose rights are affected.

It may be that, for the reasons given by McHugh and Gummow JJ in this matter, Teoh cannot stand with the Court’s earlier decision in Haoucher v Minister for Immigration and Ethnic Affairs. It may also be that further consideration may have to be given to what was said in Teoh about the consequences which follow for domestic administrative decision-making from the ratification (but not enactment) of an international instrument. [Footnotes excluded.][97]

Though Hayne J raised the presence of several matters still warranting further consideration, or perhaps more accurately, matters that the Court is eager to reconsider, he accepted that Lam was not the case in which to do so. Accordingly, he refrained from offering pages of obiter comments and accepted that such matters ‘need not be answered in this case’.[98]

7. Justice Callinan

Like McHugh and Gummow JJ, Callinan J spent only four paragraphs addressing the primary issue before the Court. Like each of the other judges, he dismissed the application on the basis that Mr Lam could not point to any additional material that he would have put to the decision-maker had he known that the children’s carer had not been consulted. As his Honour stated:

In my opinion, what is fatal to the applicant’s claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent’s hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him.[99]

Thus, though it is only implicit in the judgment of Callinan J, the notion of detriment as a requirement of a denial of procedural fairness, is present here also. Consequently, this judgment is also subject to the same criticism as each of the other separate opinions on this point.

A. The Decision in Teoh

Justice Callinan devoted 12 paragraphs of his judgment to blatant criticism of the decision in Teoh, premised on the fact that he was not convinced by counsel for the applicant, that the applicant did not need to rely on the decision. Callinan J began this attack with the following statements:

In my opinion, the expression “legitimate expectation” is an unfortunate one, and apt to mislead. In the case of Teoh, it was, with respect, a complete misnomer. ... Moreover, the necessity for the invention of the doctrine is questionable. The law of natural justice has evolved without the need for recourse to any fiction of “legitimate expectation”.[100]

While Callinan J clearly had concerns with the underlying reasoning of the majority in Teoh, his major criticism was directed against the ‘objective assessment’ of an expectation espoused most strongly in that case in the judgment of Toohey J. His rejection of that approach was argued as follows:

I would observe with respect, that an “undertaking” presupposes a recipient of it, just as an “engendering” will be meaningless unless it has an effect upon the mind of someone.

It seems to me, with respect, that if a doctrine of “legitimate expectation” is to remain part of Australian law, it would be better if it were applied only in cases in which there is an actual expectation, or that at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed.[101]

To give further indication of the level of concern (one may say obsession), with issues not even directly argued before the court in Lam, Callinan J made the extraordinary statement that he could not help but make further reservations regarding Teoh, ‘before moving to the facts of this case’. Those further reservations related to the relevance of unincorporated treaties in Teoh, and on this point Callinan J’s view was stated as follows:

The fact remains that the Convention is not part of Australian law.... In consequence, the view is open that for the Court to give the effect to the Convention that it did, was to elevate the executive above the parliament. This in my opinion is the important question rather than whether the executive act of ratification is, or is not to be described as platitudinous or ineffectual. [Footnotes excluded.][102]

Before actually moving to the facts of the case, Callinan J also confirmed his support for the views expressed by McHugh and Gummow JJ regarding the absence of substantive rights in relation to legitimate expectations.

8. Conclusion

Commentators should not resist the call to further refine and articulate the notion of legitimate expectations within administrative law. For many years, several commentators have questioned its utility beyond the identification of an interest sufficient to trigger the application of procedural fairness. The extent to which it plays an important role in helping to determine the content of procedural fairness warrants further attention. It may well be that the concept of a legitimate expectation only confuses the matter. Perhaps the more appropriate issue is the action or conduct of the decision-maker and how that in itself should be viewed as affecting the content of procedural fairness. In this respect, an undertaking or representation, an action or policy, may each shape what fairness requires in the circumstances. The presence of a legitimate expectation on the part of an individual concerned may be entirely irrelevant, representing an artificial construct that adds little or nothing to the ultimate question. In this respect, the personal or subjective knowledge or awareness of the policy, conduct, act or undertaking may be of no relevance at all, or perhaps only of secondary importance. Such an approach more appropriately reflects the particular considerations relevant in public law — the development of principles based on notions of good administration, and an emphasis on the conduct of government decision-makers.

However, this issue deals with the broader role of legitimate expectations generally. The Teoh doctrine is a separate, but related issue. The extent to which the previous minority in Teoh may have come to represent a majority of the present High Court, means that the decision is likely to be severely overhauled if the Court is given the opportunity to reconsider it. Whether it is modified substantially, or limited in the sense outlined briefly by Hayne J, remains to be seen. What is absent from the discussion in Lam, however, is any consideration of the relevance of other factors (in addition to the act of ratification) to the generation of a legitimate expectation.[103] Indeed the relevance of the procedures adopted since 1996 regarding treaty-making, as well as the scheduling of specific conventions to HREOC and other Acts, was not addressed. Even if the Court were to circumvent Teoh, it would be difficult for the Court to deny that legitimate expectations arise in cases where Parliament has endorsed the ratification in some direct way. Consequently, Teoh may prove to be more resilient than at first anticipated.

Finally, what is perhaps of most concern is the use of private law concepts in the public law context. In particular, the use of notions of reliance and detriment in procedural fairness cases is a disturbing trend. It brings the Court far too close, even into, a review of the substantive merits of a decision, and moves beyond the legitimate bounds of judicial review. What the Court should have done in Lam was to have acknowledged the denial of procedural fairness, but chosen not to grant the remedy sought. This approach acknowledges the absence of fair procedures, putting the decision-maker on notice, but refrains from quashing the decision in cases where the breach was only minor or technical. As an approach, it relies heavily on the discretionary nature of the remedies available in administrative law, which Gleeson CJ himself referred to in Lam. The Court is right to clarify and further refine the notion of legitimate expectations, but in doing so it should be mindful of its rightful role in the conduct of judicial review of administrative action.

[*] Lecturer in Law, University of Adelaide. This paper was originally presented as a seminar paper to the Comparative Administrative Law Class, at the Faculty of Law, University of Tasmania, 17 April 2003. The author would like to acknowledge the valuable comments made on that paper by Sir Anthony Mason, Dr Steven Churches, Mr Chris Finn, Mr Rick Snell, and Professor Mark Aronson. However, the views expressed herein solely reflect those of the author.

[1] [1995] HCA 20; (1995) 183 CLR 273 (hereinafter Teoh).

[2] [2003] HCA 6; (2003) 195 ALR 502 (hereinafter Lam).

[3] These issues have arisen in a number of recent cases involving similar factual scenarios: see, for example, Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 196 ALR 332.

[4] [1999] EWCA (Civ) 1871; [2001] QB 213; [2000] 3 All ER 850 (hereinafter Coughlan).

[5] See for example, Anne Twomey, ‘Minister for Immigration and Ethnic Affairs v Teoh(1995) 23 Fed LR 348 at 348–361; Margaret Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ (1995) 17 Syd LR 202 at 202–241; Leslie Katz, ‘A Teoh FAQ’ [1998] AIAdminLawF 1; (1998) 16 AIAL Forum 1 at 1–14; Suzanne Sheridan, ‘Legitimate Expectations: Where Does the Law Now Lie?’ (1998) 87 Canberra Bulletin of Public Administration 125 at 125–133; Kristen Walker, ‘Who’s The Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights’ (1995) 25 UWALR 238 at 238–254; Ryszard Piotrowicz, ‘Unincorporated Treaties in Australian Law’ (1996) PLR 160 at 503–506; John Perry, ‘At the Intersection: Australian Law and International Law’ (1997) 71 ALJ 841 at 841–859.

[6] Toohey J was largely in agreement with Mason CJ and Deane J. Gaudron J took a different perspective, based on the fact that a legitimate expectation was not even needed. For Gaudron J, the common law contained a requirement that in all matters affecting children their welfare would be a primary consideration. For a discussion of these judgments see Allars, above n5.

[7] Teoh, above n1 at 287.

[8] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38.

[9] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68–69, 77, 80–81.

[10] Teoh, above n1 at 288.

[11] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42 (Brennan J, with whom Mason CJ and McHugh J agreed); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 321 (Brennan J); at 360 (Toohey J); Jago v District Court (NSW) (1988) 12 NSWLR 558 at 569 (Kirby P); Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1992] QB 770.

[12] Teoh, above n1 at 288.

[13] For an overview of the political and legal response to the court’s decision, including two executive statements, three federal bills, one state Act, and various cases at the Federal Court level, see Wendy Lacey, ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29 Fed LR 219–240.

[14] See Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at 343; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.

[15] Compare Simsek v Macphee [1982] HCA 7; (1982) 148 CLR 636 at 644.

[16] Teoh, above n1 at 291.

[17] Ibid.

[18] As Brennan J stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36: ‘The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’ His Honour continued at 38: ‘If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.’

[19] Teoh, above n1 at 291–292.

[20] Id at 305–306.

[21] [1985] HCA 81; (1985) 159 CLR 550 (hereinafter Kioa).

[22] Teoh, above n1 at 314.

[23] Lam, above n2 at [7] (Gleeson CJ).

[24] Ibid.

[25] Id at [9].

[26] Id at [20].

[27] See Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.

[28] Lam, above n2 at [23].

[29] Id at [25].

[30] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219.

[31] [1983] 2 AC 629.

[32] Above n18 at 56–57.

[33] Lam, above n2 at [33] (Gleeson CJ).

[34] Id at [34].

[35] Ibid.

[36] Id at [35].

[37] Ibid.

[38] Id at [36]–[37].

[39] Id at [37].

[40] Id at [37]–[88].

[41] Though, detriment in relation to the ‘procedures’ involved, rather than the actual substantive outcome, would not necessarily tend towards such ‘merits’ considerations.

[42] Mark Aronson & Bruce Dyer, Judicial Review of Administrative Action (2nd edn, 2000) at 348–349.

[43] Ibid.

[44] Re MIMA Transcripts, above n27.

[45] [1990] FCA 22; (1990) 92 ALR 93 at 108 (Gummow J).

[46] Ibid at 109.

[47] Above, n18 at 18.

[48] [1990] FCA 22; (1990) 92 ALR 93 at 116-117.

[49] Ibid at 116.

[50] Id at 118, citing Re Smith and R (1974) 22 CCC (2d) 268 at 272 (Berger J) and P McDonald, ‘Contradictory Government Action: Estoppel of Statutory Authorities’ (1979) 17 Osgoode Hall LJ 160 at 191–192.

[51] See note 28 and accompanying text.

[52] Coughlan, above n4.

[53] [2003] HCA 6; (2003) 195 ALR 502 at [28].

[54] Ibid.

[55] Ibid.

[56] Teoh, above n1 at 291.

[57] [2003] HCA 6; (2003) 195 ALR 502 at [47].

[58] Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.

[59] Coughlan, above n4.

[60] [2003] HCA 6; (2003) 195 ALR 502 at [66].

[61] Above n18 at 22–23.

[62] [2003] HCA 6; (2003) 195 ALR 502 at [67].

[63] Id at [73].

[64] (1999) 174 DLR (4th) 193 at 213.

[65] [2001] 2 SCR 281.

[66] Id at 302–303; [2003] HCA 6; (2003) 195 ALR 502 at [80].

[67] Teoh, above n1.

[68] Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.

[69] At the hearing, Mr Walker QC, Counsel for the Applicant referred to it as being a decision made ‘ante-Teoh’: Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts, at 5.

[70] [2003] HCA 6; (2003) 195 ALR 502 at [84]–[85].

[71] Id at [91].

[72] Id at [95].

[73] Id at [96].

[74] Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648. For an analysis of that controversy see: Margaret Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ [1995] SydLawRw 16; (1995) 17 Syd LR 204; Kristen Walker & Penelope Mathew, ‘Minister for Immigration v Ah Hin Teoh’ [1995] MelbULawRw 16; (1995) 20 MULR 236; Aronson & Dyer, above n42 at 327–328.

[75] See Allars, above n5 at 224–225; Aronson & Dyer, above n42 at 327–328.

[76] [1990] HCA 22; (1990) 169 CLR 648.

[77] Allars, above n5 at 224-225.

[78] Twomey, above n5 at 353–354.

[79] Aronson & Dyer, above n42 at 328.

[80] Id at [100].

[81] Id at [101]–[102].

[82] [2003] HCA 2; (2003) 195 ALR 24 at 37 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.

[83] Id at [103]–[104].

[84] Id at [105].

[85] Id at [105]–[106].

[86] See, Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.

[87] [2000] HCA 57; (2000) 204 CLR 82.

[88] [1986] HCA 54; (1986) 161 CLR 141.

[89] [2000] HCA 57; (2000) 204 CLR 82 at [4].

[90] [1986] HCA 54; (1986) 161 CLR 141 at 145.

[91] Id at 130–131.

[92] Id at [131].

[93] On this point, see the discussion that took place during the hearing: Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.

[94] [2003] HCA 6; (2003) 195 ALR 502 at [111]–[112].

[95] Id at [114].

[96] Id at [122].

[97] Id at [121]–[122].

[98] Id at [122].

[99] Id at [149].

[100] Id at [140].

[101] Id at [144]–[145].

[102] Id at [147].

[103] See Lacey, above n13 at 233–238.

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