THE TRIUMPH OF PRACTICAL FAIRNESS OVER LEGITIMATE EXPECTATION IN AUSTRALIAN ADMINISTRATIVE LAW

• Citation: (2017) 29 SAcLJ 856
• Published date: 01 December 2017
• Date: 01 December 2017

This article explores the adoption and ultimate rejection in Australian administrative law of the idea of a legitimately held expectation as a basis for implying a duty of procedural fairness in administrative decision-making or fleshing out the content of that duty. The article analyses the peaks and troughs of the application of the concept of legitimate expectation, from its shaky beginnings and adoption, implementing UK law, to its subsequent demise and death in the High Court decision in the Minister for Immigration and Border Protection v WZARH (“WZARH”). Cases after WZARH are discussed and the new overall test of practical fairness in administrative decision-making is reviewed.

1 The questions in the two limbs of the doctrine of natural justice in administrative decision-making – when the duty to accord procedural fairness arises, and what the content of that duty of natural justice is – are not always easy to answer clearly in particular cases, hence the volume of litigation that has passed and still passes through the superior courts in Australia seeking adjudication on these questions.

2 The High Court in Saeed v Minister for Immigration and Citizenship1 neatly summarised the position by stating: “when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power”;2 and “all statutes are construed against a background of common law notions of justice and fairness”,3 thus Parliament must use clear words to exclude natural justice. Further “[o]bservance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise

[and a] failure to fulfil that condition means that the exercise of the power is inefficacious”,4 rendering the decision invalid.5

3 One aspect of the duty to accord natural justice and the provision of fairness in decision-making concerns the extent to which expectations created by, or arising from, promises of administrative decision-makers in the exercise of their discretion should be honoured, or the well-founded expectations of the person to be affected by the decision either create obligations of natural justice in the decision-maker or increase the content of the duty to accord natural justice. Should, for example, a promise made to an individual that certain people will be consulted before a decision is made to deport that individual be honoured as part of a reasonably held expectation as to fair process and procedure of the decision-maker?6 Should a licence-holder be able to hold that licence for a period and reasonably expect or anticipate that he would be given notice of any change and opportunity to argue the case about revocation of the licence? Should an individual affected by a policy change relevant to a decision to be made by an administrative decision-maker be afforded an opportunity to address that policy change? Is a reasonably founded expectation about process or procedure to be followed, representations made or policy to be applied in making an administrative decision an interest that attracts the duty to accord natural justice and/or is relevant to determining the content of the duty?

4 These questions were answered in Australia for a period of some three to four decades by utilising the concept of legitimate expectation in administrative law. Categories of cases to which legitimate expectations might attach during this period were identified as follows:7

Legitimate expectations came to be invoked in four main categories:

— where people had relied upon a policy or norm of general application but were then subjected to a different rule or policy;

— where a policy or norm of general application existed and continued but was not applied to the case at hand;

— where an individual received a promise or representation which was not honoured because of a later change to a policy or norm of wider application; and

— where an individual received a promise or representation which was subsequently dishonoured, not because of a general change in policy but because the decision-maker changed its mind in that instance.

5 The concept of legitimate expectation, though, was not without its critics, and eventually the judicial voices opposing the use of the concept and expressions by judges of their doubts about its utility gathered in volume and won the day to relegate the doctrine to history.

6 The journey of acceptance, application, critiques and challenge to the validity of the concept of legitimate expectation, and its final demise in 2015 will be addressed in this article. The position reached today in Australia will be examined as to how the law of natural justice treats expectations previously regarded as legitimate, whether there is a diminution of procedural fairness, and what the current test is for attracting natural justice in administrative decision-making.

I. Origins and shaky beginnings

7 It was Lord Denning MR in the case of Schmidt v The Secretary of State for Home Affairs8 (“Schmidt”), who created the expression “legitimate expectation” as giving rise to natural justice in certain circumstances, that is, there might be “some legitimate expectation, of which it would not be fair to deprive [the individual] without hearing what he has to say”.9 The context of the decision was a successful application to strike out a statement of claim alleging breach of procedural fairness and the Master of the Rolls made it clear that legitimate expectation was not regarded as a right. Whilst the UK had begun to recognise the concept of legitimate expectation in the late 1960's, superior courts in Australia were slower to adopt it and did not reveal the same level of acceptance of the concept.

8 Nearly a decade after Schmidt, in a case before the High Court of Australia in the late 1970's, Salemi v MacKellar (No 2)10 (“Salemi”), it was argued that the announcement by the Minister for Immigration and Ethnic Affairs of an amnesty for certain classes of “illegal immigrants” created for Mr Salemi, the individual plaintiff, a legitimate expectation that he might have a right to remain in Australia and therefore he was

entitled to natural justice prior to any decision by the Minister about deportation.

9 The plaintiff's argument about legitimate expectation was couched by Stephen J as follows:11

The plaintiff contends that the announcement of the amnesty, coupled with the plaintiff's response to it, operated to confer upon him some right, or at the least some legitimate expectation of being accorded a right, to remain in Australia. This, it is said, is enough to impose upon the Minister an obligation to act fairly towards the plaintiff having regard to the requirements of natural justice. This in turn obliges the Minister to give to the plaintiff the opportunity of presenting for his consideration reasons why he should [not] exercise his power of deportation …

There was some support amongst the justices of the High Court for the doctrine of legitimate expectation. In his support of the doctrine, Stephen J stressed that it was a procedural safeguard, rather than a substantive matter, and that “the news releases [about the amnesty] and the plaintiff's response to them gave rise to an expectation which the law recognizes as entitling to procedural protection”.12 The law does not interfere in the exercise of discretion by the Minister, Stephen J articulated, but will make sure that “procedural safeguards are observed”.13

10 Jacobs J, too, accepted the judicial authorities in the UK which supported giving persons an opportunity to be heard in certain circumstances where there was legitimate expectation. His Honour stressed that the legitimate expectation was not itself a “right” but “[t]he right is the right to natural justice in certain circumstances and a ‘legitimate expectation’ is one of those circumstances”.14

11 In the same case, there was an objection, perhaps not unexpected but strongly held, from Barwick CJ, who queried the meaning of “legitimate expectation” in a sentence often quoted since – his Honour remarked: “I am bound to say that I appreciate its literary quality better than I perceive its precise meaning and the perimeter of its application”.15

12 More significantly, Barwick CJ felt the concept added nothing to the concept of a “right”, stating:16

But, no matter how far the phrase may have been intended to reach, at its centre is the concept of legality, that is to say, it is a lawful expectation which is in mind. I cannot attribute any other meaning in the language of a lawyer to the word ‘legitimate’ than a meaning which expresses the concept of entitlement or recognition by law. So understood, the expression probably adds little, if anything, to the concept of a right.

13 Gibbs J also took the view that the concept added nothing to natural justice: it did nothing to alter whether there was duty to accord natural justice in particular circumstances. If the power to make a decision to deport could be lawfully exercised without attracting the principles of natural justice, the concept of legitimate expectations did nothing more, even if the decision not to heed the amnesty in the individual case seemed unfair. However, if the Minister were obliged to decide in accordance with natural justice, the ministerial statements made, and any reliance on them, might be relevant.17 Hence, the view of Gibbs J was that the concept was not relevant to whether or not the duty of procedural fairness had been discharged.

II. Legitimacy of legitimate expectation

14 Leaping ahead less than a decade from the support, albeit qualified, of legitimate expectation in Salemi, by 1985, the year of the decision in Kioa v West18 (“Kioa”), the High Court had embraced more fully the doctrine of legitimate expectation. Mason J stated in Kioa:19

It is a fundamental rule of the common law doctrine of natural justice expressed in...