Contrary to the rights-oriented approach that is prevalent in the UK The High Court has been more cautious when it comes to defining the boundaries of expectations that are legitimate within Australian administration law.
By Simon French
Contrary to the rights-oriented approach adopted in the UK The High Court has been more prudent in defining the limits of what is legitimate expectation within Australian administration law.
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A doctrine of reasonable expectations can be used to assist in creating a system for the safeguarding of the private interest in confronting of unjustly enacted public power.
However, a change in Australian judiciary in the last five years or more precisely, has been a constant source of criticism for the doctrine and led its development to diverge than the one that is being used by England. The effectiveness in the law has been debated and the contexts in the context of its application strictly restricted. In order to protect the interests of individuals, it is now restricted. In the end, it has been viewed as a matter of suspicion.
Introducing legitimate expectations
The English courts initially adopted the concept of reasonable expectations during a number of taxation disputes where The Inland Revenue, having promised one thing or established a standard procedure over the course of several years decided to adopt an alternative approach. Naturally, there were times that these changes were made abruptly and unfairly. In those cases , courts sought an solution that would allow them to reconcile their legitimate expectation of citizens with the flexibility that a body like Inland Revenue Inland Revenue must have to modify its policies and practices.
This is a principle that in its most powerful form will operate even beyond the boundaries of courts' supervision. It may appear to be harmless, but the idea that promises can't be broken without a penalty by public entities could be utilized to argue that fairness demands that a public entity not be able to renounce an agreement. But, if the promises are that a certain decision will be taken (rather than being taken in a specific manner) The courts are getting close to intruding on the legitimacy of the decision-making process when they attempt to provide substantive (rather than processual) protection. The current Australian policy follows that only the procedural protections can be granted to legitimate expectations, but the late Sir Anthony Mason recently observed that this isn't out of the realm of possibility.
An ideal place to begin is to read the following statement made by the English Court of Appeal in R (on the application of Bibi) in Newham LBC v Newham Create Australia reviews
"In every legitimate expectation case whether procedural or substantive there are three issues that must be addressed. The first concern is what extent an authority of the state, whether through promises or practice, made itself; the second is whether or not the authority has taken action or plans to act illegally regarding its promise and the third question is what the court must do".
The first one is simply the matter of fact and ought to be treated in the same way regardless of whether it is in Australia or England. In relation to the third and second issues that Australian and English courts are different. Concerning the second issue, Laws LJ in R v Secretary of State for Education and Ex part Begbiedescribed how English courts should weigh the different interests in these words:
"The circumstances that are presented, taken in their legal context and in the context of the statute, will lead the court towards a greater or less intrusive form of review. In certain cases, an alteration of policy by an authority of the public, even if in contrast to the position of the applicant can raise issues of general policy that affect the entire public or a substantial portion of it (including those who aren't represented before the court) and the court is not in any better position to make a decision, if the most basic Wednesbury basis, and without the uniform of the policymaker that they are not able to wear ...
"In other situations, the action or omission alleged could occur on a smaller scale that has fewer actors. In this case, we must consider the significance of the situation of the Coughlan case that only a small number of people have been affected by the promise that was in the case in question. The facts in the case may be a bit solitary and restricted and not affecting any one particular group of people. There could be no broad diverse questions of general policy or any with multiple layers of effects on the merits of which the court has to make a decision. The court might be able to discern precisely and with enough certainty what the full implications are of any decision it issues. In this case, the court's decision to condemn what is being done as an infraction of the law, which is justifiable (or more precisely, failure to remove its status as abusive) only if an overwhelming public interest is demonstrated by the court, which is the judge, does not cause objection to the assertions to democratic authority."
In contrast The Australian High Court has rejected the idea of the protection of substantive expectations. As Mason CJ stated in Attorney-General NSW Quin v Quin:
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"In the instances in this court where an expectation of a legitimate nature was deemed to be entitled to protection, the protection is taken in its form in the shape of procedureal safeguards, by requiring that the decision-maker follow the natural rules of justice. In none of these instances was the defendant considered to be protected substantively by way of an order mandating the decision maker to exercise their discretion in a specific manner".
There are fascinating parallels with the estoppel doctrine in law of public policy created through Gummow J. in Minister of Immigration, Local Government and Ethnic Affairs Kurtovic v Kurtovic in addition to the English approach to the substantive protection of legitimate expectations, as defined by Laws LJ Begbie. They are, however, not relevant to the present discussion.
The Australian approach
After providing some context the remainder of this piece examines the use this doctrine to Australia and provides some suggestions for how to approach it in the future. Particularly, consideration is given to the following questions:
An applicant must have an expectation upon which they intend to be relying;
There is a requirement to prove reliance is not detrimental;
There are other obligatory conditions; and
the notion of legitimate expectation is of any residual value.
Do they understand the legitimacy of expectation?
The case of the Minister for Immigration and Ethnic Affairs v Teoh The High Court held that Australia's adoption of the UN Convention on the Rights of the Child led to the legitimate expectation that decision-makers should be in line to the Convention. The majority decision stated that:
“It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it”.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, the High Court did not find Teoh to have been wrongly decided on this point, but all members of the Court emphasised the importance of actual expectations.Callinan J observed that:
“ ... if a doctrine of ‘legitimate expectations’ 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”.
Further, in the recent case of Country Energy v Williams in the NSW Supreme Court this very question came up for consideration. The circumstances were that Mr Williams, an Aborigine, had a right to be consulted pursuant to an internal policy of Country Energy. Mr Williams did not know that he had the right to be consulted at the relevant time. Nevertheless, Basten JA was able to find a legitimate expectation:
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“ ... where the expectation follows from public conduct or policy statements, subjective reliance is not required because the unfairness in a particular circumstance need not be appreciated at the time, by the affected individual: it is sufficient that others may identify the unfairness or that the individual concerned may realize at a later point that he or she has been unfairly treated”.
Some commentators have suggested that such cases are not properly characterized as instances of legitimate expectations at all and there is a logical attraction to that argument. Of course, in cases where a promise or practice is directed at a particular individual, it remains necessary for that individual to have subjectively held the relevant expectation. In practice, it is only where the promise or practice arises from publicly available documents that it will not be necessary to show an appreciation of the promise or practice subsequently relied on.
Is it necessary to show detrimental reliance?
In cases such as Teoh, where the applicant had no subjective expectation, there can be no question of detrimental reliance. However, even in cases where there is subjective appreciation it is not necessary to show detrimental reliance. None of the judgments in Lam state in terms that detrimental reliance is a necessary ingredient before the courts will protect an expectation, although there are references to its absence from the facts before them. In that case the applicant complained, among other things, that the decision-maker did not, having promised that they would, obtain information from certain people regarding his application. Mr Lam did not suggest that those people could have provided any useful information, nor that he had relied on that promise in any material way. In those circumstances it was impossible to show that the frustration of the legitimate expectation had occasioned any unfairness.
In Bibi, Schiemann LJ explained that “the significance of reliance and of consequential detriment is factual, not legal”.That is to say, it has no jurisprudential significance and its use is to demonstrate practical unfairness. It is one of the features that the courts will consider when they are assessing the unfairness that would be caused to an applicant if a legitimate expectation were frustrated.
What else must an applicant show?
observed that fairness is essentially a practical concept. There is nothing surprising or controversial in this, but it does mean that we will probably not receive any principled judicial guidance. Whether or not an applicant has suffered any unfairness will have to be judged in each case and will largely be a matter of impression.
In any dispute involving legitimate expectations the question that the court ultimately has to answer is whether the denial of the legitimate expectation was capable of affecting the decision. However, an applicant is not required to show that but for the frustration of the legitimate expectation the outcome would have been different, simply that it could have been. If an applicant succeeds in overcoming that initial hurdle, the onus is placed on the decision maker.
Some analysis was given in WACO v Minister for Immigration & Multicultural & Indigenous Affairs:
“Is create Australia legitimate reference to ‘practical injustice’ must be read in the light of the facts of the case. Particularly we do not understand his Honour to be saying that it is necessary in each case where denial of natural justice is alleged that the person claiming not to have been given an opportunity to put his or her case lead evidence to show that had the opportunity been given it would make a difference to the outcome. There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair. It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to do so ... If the possibility exists that the appellant, if given the opportunity, might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome”.
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This passage confirms that the onus is on the decision-maker to demonstrate that the denial of the opportunity in fact made no difference. Potentially this is a very onerous requirement and should cause decision makers to be wary of frustrating procedural expectations. Often it will only be with the benefit of hindsight that one will know whether or not a particular expectation can be frustrated.
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