Minister for Immigration and Ethnic Affairs v Teoh
High Court of Australia · 1995
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Australia ratifies a treaty and never legislates it. Does that treaty count for anything when an official decides your case?
Members of the Court in Lam doubted the legitimate-expectation reasoning, treating the question as whether the decision-making process was practically unfair rather than whether an expectation was disappointed. Teoh has not been overruled and is still where the ratification point is read from, but an answer resting on legitimate expectation alone should acknowledge that the doctrine's footing is contested.
Legitimate expectation is no longer the route. Kiefel, Bell and Keane JJ trace the concept "from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision-maker accord procedural fairness", and hold that "[t]he 'legitimate expectation' of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness"; recourse to it is "both unnecessary" and apt to mislead ([30]). The starting point instead is that, absent a clear contrary legislative intention, decision-makers must accord procedural fairness, and its content is settled by the practical requirements of fairness in the circumstances. So Teoh's reasoning about what ratification generates is historical. The narrower point that an unincorporated treaty is not excluded from a decision-maker's consideration merely because it has not been incorporated is a continuing use of the case; WZARH did not set out an exhaustive account of what else survives. Frame the argument as practical unfairness, not disappointed expectation.
What happened?
Teoh's application for permanent residence was refused, and he faced deportation, on the ground of serious drug convictions. He had an Australian wife and children, and the decision plainly affected them. Australia had ratified the Convention on the Rights of the Child, Article 3.1 of which requires that in all actions concerning children the best interests of the child be "a primary consideration". The Convention had not been incorporated into Australian law.
Nothing indicated that the decision-maker had regard to the Convention's terms.
What did the Court decide?
The Minister's appeal was dismissed and Teoh won. The decision could not stand, and the Convention's provisions were not excluded from consideration "simply because it has not been incorporated into our municipal law".
Proposition
What is the principle?
The crucial questions were whether Article 3 was relevant to the discretion, and whether ratification could give rise to a legitimate expectation that the discretion would be exercised in conformity with the Convention. The Court answered both for Teoh.
A ratified but unincorporated treaty is not irrelevant to administrative decision-making: ratification can give rise to a legitimate expectation that the decision-maker will exercise the discretion in conformity with the treaty. What that expectation delivers is procedural, not substantive: "if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated" ([37]).
And what satisfies it is the principle being applied, not the applicant winning: "That would not matter if it appears from the delegate's acceptance of the Panel's recommendation that the principle enshrined in Art.3.1 was applied. If that were the case, the legitimate expectation was fulfilled and no case of procedural unfairness could arise" ([38]).
Why does this case matter?
Because of the reaction, which was faster and louder than the decision. On 10 May 1995 the Commonwealth Attorney-General and the Minister for Foreign Affairs issued a joint statement to the effect that ratification gives rise to no such expectation, and legislation to the same end was introduced more than once. Little else in Australian administrative law has provoked that response, and it tells you something about what the decision was understood to have changed.
The second reason is that it is now, largely, a case about how a doctrine dies. The reasoning has not been vindicated and it has not been overruled; it has been superseded by a Court that decided the concept it rested on was unnecessary. Reading Teoh alongside Lam and WZARH is the clearest short illustration available of an Australian court retiring a technique while leaving the case standing.
Exam and application relevance
Do not frame the argument as a legitimate expectation. In WZARH, Kiefel, Bell and Keane JJ put it at [30]: the legitimate expectation of a person affected by an administrative decision "does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness", and it "is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions". Start there, and argue content from the circumstances and the statutory framework.
That means showing practical unfairness rather than a disappointed expectation. Lam is the case that makes the point: identify what your client lost — an opportunity to put material, a chance to address a matter the decision turned on — and show that the process was unfair because of it. Do not assume that Teoh's notice-and-hearing requirement simply survives under a different label.
One thing Teoh remains useful for is the narrower point that an unincorporated treaty is not excluded from a decision-maker's consideration merely because it has not been incorporated.
Check your understanding
Your client says the decision-maker ignored a ratified treaty. Why is "legitimate expectation" the wrong way to put that argument today, and what is the right way?