International Immigration Multicultural

In ‘A prelude to the demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2004) 26 Sydney Law Review 131, Wendy Lacey criticises the actual decision in Lam and its obiter comments on Teoh. Evaluate her criticism.

Introduction

Lacey has heavily criticised the decisions made by the judges Gleeson CJ, Justices Mc Hugh and Gummow , and Justice Hayne in Lam. However not all her criticisms are justified. The issues will be discussed systematically and chronologically first looking at the situation in Teoh, then all post Teoh discussion, then Lam. Following on from this any important points will be brought up at the end of the assignment. All this will be done whilst discussing Lacey’s opinions throughout.

Firstly it is important to understand the dilemma in question. It has already been 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”

However

“Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law”

This issue was addressed in Teoh where it was held that significant expectation could arise by virtue of the act of ratification alone, even where the individual involved had no knowledge of the expectation. One could say that Teoh imposes a mandatory consideration upon decision makers to look at international legislation . Lacey quite rightly disagrees, it would be difficult given the above dichotomy to see how a mandatory consideration could be possible.

Lacey asserts that the minority view in Teoh has gained significance in Lam. This is clearly represented in the view presented by Justice McHugh;

“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, privileges or matter that is the subject of a legitimate expectation (2) the doctrine of legitimate expectations does not require a decision-maker to inform the 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”

McHugh J’s view was certainly different from the majority he questioned the practical role for the doctrine following the decision In Kioa v West where the high court had adopted a broad approach to the types of an accurate analysis of the position since Kioa regarding what is referred to as expectations must still play a role in determining the content of procedural fairness requirements in any given case. McHugh also questioned the objective nature of the expectation in Teoh claiming that the state of the persons mind in relevant.

Lam

In Lam there appeared to be three messages. Firstly that legitimate expectation is apt to confuse or mislead, secondly that legitimate expectation does not trump the ordinary fairness test for procedural fairness and that a legitimate expectation only ’fairness if it may have adversely affected an individuals opportunity to be heard.

Lacey has criticised Lam on two main grounds; firstly she disagrees with the idea of private law concepts being used in a public sphere and following on from this states that this will lead to a 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. Secondly, while welcoming the investigation into legitimate expectation in administrative law, criticises he reasoning used in Lam and claims that it will cause confusion.

Private law in Public Domain

The essential problem with legitimate expectation is that it leads to a consideration of the merits of the case. In order to show actual unfairness there would have to be some kind of detriment. The problem here is how would one show ‘actual unfairness’ rather than ‘a mere departure from a representation’? Consideration of actual detriment would tend towards a consideration of the actual merits of the case. Aronson & Dyer claim that the presence of reliance and detriment may affect the content of procedural fairness, but it is not critical to whether procedural fairness is denied.

Confusion

Returning to Lacey’s criticism that the reasoning in Lam will create confusion. I do not think that Lam has helped or disturbed the ever confusing concept of legitimate expectation in administrative law. In Lam Hugh and Gummow used Haoucher- a legitimate expectation was held to have existed on the bases if policy statement Allars and Twoney claim Teoh is consistent with Haoucher. Aronson and Dyer say no

In the end all the judges agreed that, to the extent that legitimate expectation has a role in determining the content of procedural fairness, it does not trump the traditional test of fairness

The Result

It appears that Lacey would have liked them to acknowledge the denial of procedural fairness, but not grant the remedy sought rather than refuse to find that a denial of natural justice had occurred and consequently dismissing the application. While the result is possible given the decision in Stead v State Government Insurance Commission it would certainly not have been easy.

Conclusion

In order to analyse this issue correctly it would seem that Aronson has posed the real questions;

“Will it impose an unrealistic burden on administrators? Will it unduly discourage the government from ratifying such treaties and thereby prevent Australia from playing a proper role in international affairs? Will it tend to focus attention on those treaty obligations which are most easily characterised as giving rise to “rights” enforceable by individuals? and thereby divert resources away from the fulfilment of broader social obligations? Will the provision of a hearing, where administrators decide not to comply with treaty obligations have any instrumental value?(Aronson at 304)

It has been stated that

“The High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam has chilled the tendency to read the Teoh principle for more than it really is. The Court emphasized that although the distinction between substantive and procedural expectations is not clear-cut, a legitimate expectation is not a rule of law and cannot convert a procedural expectation into something substantive.”

Lacey it appears has also interpreted Teoh for more that it really is, hence its so called ‘downfall’ in Lam seems a little more dramatic.

Lam is not a prelude to the demise of Teoh in so much as even pre Lam the then labour government issues a joint ministerial statement intended to reverse its effect. A similar statement was issued by the coalition government after it took office. Both statements sought to rely on a qualification stated in the judgement of Mason CJ and Deane J in Teoh which suggests that ‘executive decisions to the contrary’ may prevent ratification of a treaty giving rise to a legitimate expectation.

Does legitimate expectation have a place in administrative law? Lacey, while advocating the discussion of this appears to dismiss on the basis that it would jeopardise the substantive decision making powers that are given to the administration. Aronson is of the opinion that legitimate expectation is completely unnecessary.

Given the nature of Australian law Lam is likely to have a limited effect. Nevertheless, Aronson agrees with Lacey that it is unlikely that legitimate expectation will be likely to be used in the Teoh way in the future

Bibliography

• Aronson, Dyer & Groves, “Judicial Review of Administrative Action (6^th ed, 2004) 395-410 (16p)
• Allars, Margaret , '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 224, 225
• Lacey , Wendy “case commentary: a prelude to the demise of teoh: the high court decision in re minister for immigration and multicultural affairs; ex parte lam” 26 sydney l. Rev. 131
• Ford, Jolyon, “Book Review, The Brennan Legacy: Blowing the Winds of Legal Orthodoxy” 25 Sydney L. Rev. 413
• Charlesworth, Chiam, Hovell, & Williams “deep anxieties: Australia and the international legal order” 25 sydney l. Rev. 423
• Twomey, Anne , 'Minister for Immigration and Ethnic Affairs v Teoh' (1995) 23 Fed LR 348 at 353, 356

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