This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

The Doctrine of Legitimate Expectations


Legitimate expectations are a central principle of administrative law. Government decision-makers are required to fulfil the legitimate expectations that they have created. Where a decision-maker makes a decision and fails to satisfy a legitimate expectation in the process followed in arriving at the decision, the decision can be challenged.

The doctrine of legitimate expectation became prominent in 1994 when the High Court made the decision of Minister of State for Immigration and Ethnic Affairs v Teoh. Among other things, this case established that an applicant has a legitimate expectation that an Australian decision-maker will take into account the obligations imposed under International Conventions that Australia has ratified.

However, the doctrine of legitimate expectation has been called into question since the decision of Teoh. Subsequent decisions have found fault with the High Court’s reasoning, including that the concept is unclear and unhelpful and that the more important question is how to ensure the fairness of a decision.

Minister of State for Immigration and Ethnic Affairs v Teoh

The Teoh decision concerned a Malaysian citizen who had lived in Australia since 1988, married an Australian woman and had three children with her. In 1989, the man applied for residency in Australia but before his application was decided, he was found guilty of criminal offences, including heroin importation.

Teoh’s application was rejected because he could not fulfil the good character requirement. He applied for a review of the decision, adducing evidence that he was the only person who could keep the family together. The Immigration Review Panel rejected the review. The Minister accepted the panel’s decision and made an order for Teoh’s deportation.

Teoh then applied to the Federal Court for review of these decisions. The Federal Court rejected his application, finding that both decisions had been correct in law. The man then appealed to the Full Court of the Federal Court, which found that the powers exercised by the Immigration Review Panel and by the Department had been improperly exercised. The Immigration Minister appealed to the High Court against the Full Court’s decision but a majority of the High Court bench upheld the Full Court’s decision. The High Court majority judgment agreed that there had been a breach of natural justice in the decisions, which stemmed from the Department’s failure to invite Teoh to make submissions as to whether his deportation should occur in light of Australia’s status as a signatory to the Convention on the Rights of the Child. The Convention requires the best interests of the child to be taken into account when any administrative decision is made that concerns the child. The High Court found that Australia’s ratification of the Convention on the Rights of the Child created a legitimate expectation that decision-makers would treat the rights of children as a primary consideration.

What are legitimate expectations ?

Legitimate expectations can be created in a number of ways, including through public statements, public policies, and by the adoption of regular practices. A legitimate expectation can be disappointed where a government agent breaches a policy, fails to apply a policy or fails to follow a procedure.

Where a decision-maker is considering taking a course that is inconsistent with a party’s legitimate expectation, the party has the right to be given notice and to have an opportunity to respond to the decision-maker’s proposed approach. 

Judicial review focusses on the procedures that were followed in arriving at an administrative decision. It does not review the correctness of the decision itself. A person unhappy with an administrative outcome may complain about the process followed in arriving at the decision but not about the decision itself.

High Court has criticised legitimate expectations doctrine

In 2015, the High Court decided the matter of Minister of Immigration and Border Protection v WZARH. In that matter, a refugee applicant sought an independent merits review of a negative refugee determination. The applicant was interviewed by a reviewer, who subsequently became unavailable to complete the assessment. The assessment was handed over to another reviewer. The new reviewer decided the application based on a transcript of the interview.

The respondent sought judicial review of the decision by the second reviewer, successfully arguing that procedural fairness had been breached. The Full Court of the Federal Court found that the applicant had had a legitimate expectation that the member who had interviewed him would be the person who would make the recommendation to the minister.   

The Minister appealed to the High Court against the decision The High Court dismissed the Minister’s appeal, finding that the respondent had been denied procedural fairness. However, the HIgh Court criticised the doctrine of legitimate expectation, with Justices Keifel, Bell and Keane stating that the concept of legitimate expectation:

‘may distract from the real question: namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.’

Their Honours found that the concept of legitimate expectation introduces confusion and distracts from the ‘true inquiry into the opportunity that a reasonable administrator ought fairly to have given.’ In other words, the real issue is whether the process had been unfair rather than whether a legitimate expectation has been disappointed.

The court found that the procedure that was followed was unfair because the respondent had not been given an opportunity to advance his case resulting in procedural injustice. It did not find the decision was wrong because of a failure to satisfy a legitimate expectation. 

Conclusion

While the doctrine of legitimate expectations can still be used in administrative law, opinions are divided as to its usefulness. It is safer to frame grounds of review of administrative decisions in terms of procedural injustice resulting from the process that was followed in arriving at the decision. 

If you require legal advice or representation in an administrative law matter or in any other legal matter, please contact Armstrong Legal. 

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