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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - estoppel - whether an estoppel can operate to bind the donee of a statutory discretionary power - whether a representation was sufficiently clear and unambiguous to give rise to an estoppel - whether the party seeking to raise an estoppel must have suffered detriment by his reliance on the representation - whether the decision maker was functus officio - whether a multiplicity of decisions discloses an improper purpose in the exercise of the discretion - whether issue estoppel applies to decisions of the Administrative Appeals Tribunal - observations on the use of the term "unfairness" in a substantive rather than procedural sense in administrative law.Administrative Law - natural justice - whether reliance by a decision maker on material from a source other than the complainant himself gives rise to a right to be heard on that material - whether such a right is affected by the need to keep the identity of the third-party informant confidential - whether the Criminal Deportation Policy announced by the appellant Minister on 4 May 1983 and the Transitional Policy announced on 28 March 1984 generated a "legitimate expectation" so as to give rise to a right to be heard in the event of a departure from those Policies - observations on the meaning of "legitimate expectation" in administrative law.
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Local Government Act 1919 (N.S.W.)
Probation and Parole Act 1983 (N.S.W.)
Sentencing Act 1989 (N.S.W.)
Transport Act 1983 (Vic.)
Interpretation Act 1889 (U.K.)
Pensions Appeal Tribunals Act 1943 (U.K.)
Town and Country Planning Act 1968 (U.K.)
Defence (General) Regulations 1939 (U.K.)
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687
Heckler v Community Health Services of Crawford County Inc. [1984] USSC 103; 467 US 51 (1984)
Utah Power & Light Co. v United States [1917] USSC 68; 243 US 389 (1917)
Phelps v Federal Emergency Management Agency [1986] USCA1 65; 785 F 2d 13 (1986)
St. Ann's Island Shooting & Fishing Club Ltd. v The King (1950) 2 DLR 225
Minister of Agriculture and Fisheries v Hulkin, (English Court of Appeal, unrep.)
Minister of Agriculture and Fisheries v Matthews (1950) 1 KB 148
N.S.W. Trotting Club Ltd. v Glebe Municipal Council (1937) 37 SR (NSW) 288
Cudgen Rutile (No. 2) Pty. Ltd. v Chalk (1975) AC 520
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd. (1962) 1 QB 416
Wells v Minister of Housing and Local Government (1967) 1 WLR 1000
Western Fish Products Ltd. v Penwith District Council (1981) 2 All ER 204
Lever Finance Ltd. v Westminster (City) London Borough Council (1971) 1 QB 222
Brickworks Ltd. v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568
Livingstone v City of Westminster (1904) 2 KB 109
In re 56 Denton Road, Twickenham (1953) Ch 51
Rootkin v Kent County Council (1981) 2 All ER 227
Australian Broadcasting Corporation v Redmore [1989] HCA 15; (1989) 63 ALJR 306
Australian Capital Television Pty. Ltd. v Minister for
Transport & Communications (1989) 86 ALR 119
Attorney-General v Municipal Council of Sydney (1919) 20 SR (NSW) 46
Pratten v Warringah Shire Council (1969) 2 NSWR 161
Molton Allen & Williams Inc. v Harris 613 F 2d 1176 (1980)
Schweiker v Hansen [1981] USSC 111; 450 US 785
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd. (1964) 2 QB 480
The Royal British Bank v Turquand [1856] EngR 470; (1856) 6 El & Bl 327; 119 ER 886
Broad Avenue Laundry & Tailoring v United States 681 F 2d 746 (1982)
United States Immigration and Naturalization Service v Hibi [1973] USSC 251; 414 US 5 (1973)
Robertson v Minister of Pensions (1949) 1 KB 227
Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681
Ansett Transport Industries (Operations) Pty. Ltd. v Commonwealth [1977] HCA 71; (1977) 139 CLR 54
A. Roberts & Co. Ltd. v Leicestershire County Council (1961) Ch 555
Crabb v Arun District Council (1976) Ch 179
Attorney-General of Hong Kong v Humphrey's Estate (Queen's Gardens) Ltd. (1987) 1 AC 114
United States v Georgia-Pacific Company [1970] USCA9 18; 421 F 2d 92 (1970)
Air-Sea Brokers Inc. v United States 596 F 2d 1008 (1979)
Federal Deposit Insurance Corporation v Harrison [1984] USCA11 945; 735 F 2d 408 (1984)
U.S.A. Petroleum Corp. v The United States [1987] USCAFED 343; 821 F 2d 622 (1987)
Federal Deposit Insurance Corp. v Roldan Fouseca [1986] USCA2 588; 795 F 2d 1102 (1986)
Anns v Merton London Borough Council [1977] UKHL 4; (1978) AC 728
Verwayen v The Commonwealth (No. 2) (1989) VR 712
Waltons Stores (Interstate) Ltd. v Maher [1988] HCA 7; (1988) 164 CLR 387
Waverley Transit Pty. Ltd. v Metropolitan Transit Authority (Supreme Court of Victoria, 2/6/88, unrep.)
Collin v Holden (1989) VR 510
Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507
Grundt v Great Boulder Pty. Gold Mines Ltd. [1937] HCA 58; (1937) 59 CLR 641
Je Maintiendrai Pty. Ltd. v Quaglia (1980) 26 SASR 101
Foran v Wight (High Court of Australia, 15/11/89, unrep.)
Brikom Investments Ltd. v Carr (1979) QB 467
Greasley v Cooke (1980) 3 All ER 710
Amalgamated Investment & Property Co. Ltd. (In Liquidation) v Texas Commerce International Bank Ltd. (1981) 1 All ER 923
Norfolk County Council v Secretary of State for the Environment (1973) 1 WLR 1400
Re Smith and The Queen (1974) 22 CCC (2d) 268
Laker Airways Ltd. v Department of Trade (1977) QB 643
Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432
Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98
Zoeller v Attorney-General (Cth.) (1989) 16 FCR 153
Wiest v Director of Public Prosecutions (1988) 86 ALR 464
Commonwealth v Sciacca (1988) 78 ALR 279
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Sunshine Coast Broadcasters Ltd. v Duncan (1988) 83 ALR 121
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; (1982) AC 617
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
In re Preston [1984] UKHL 5; (1985) AC 835
H.T.V. Ltd. v Price Commission (1976) ICR 170
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629
R. v Gaming Board for Great Britain, ex parte Benaim (1970) QB 417
Century Metals and Mining NL v Yeomans (Full Court of Federal Court, 25/7/89, unrep.)
Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487
Cole v Cunningham (1983) 81 FLR 158
C.C.S.U. v Minister for the Civil Service (1985) AC 374
Salemi v MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396
Haoucher v Minister of State for Immigration and Ethnic Affairs (1988) 83 ALR 530
F.A.I. Insurances Ltd. v Winneke [1982] HCA 26; (1982) 151 CLR 342
South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378
Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 46 ALR 123
R. v Secretary of State for the Home Department, ex parte Kahn [1984] EWCA Civ 8; (1984) 1 WLR 1337
R. v Secretary of State for the Home Department, ex parte Ruddock (1987) 2 All ER 518
Oloniluyi v Secretary of State for the Home Department (1989) Imm AR 135
Regina v Secretary of State for the Home Department, Ex parte Mowla ("The Times", 9 January 1990)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24
Muslowie v Minister for Immigration and Ethnic Affairs (1986) 13 FCR 179
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
HEARING
SYDNEY Counsel and Solicitors for Mr. A. Emmett Q.C.
the Appellant: and R. Greig Esq.
instructed by the
Australian Government
Solicitor.Counsel and Solicitors for Mr. R.J. Ellicott Q.C.
the Respondent: and C. Waterstreet Esq.
instructed by the Legal
Aid Commission of New
South Wales.
ORDER
Orders 2 and 5 of the Orders made by Einfeld J. on 2 March 1989 be set aside.Otherwise the appeal be dismissed.
No order as to the costs of the appeal.Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
DECISION
On 2 March 1989, the Court constituted by a single judge made a number of orders in a proceeding for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which Veselko Kurtovic, the respondent to the present appeal, was the applicant and the Minister of State for Immigration, Local Government and Ethnic Affairs, the present appellant, was the respondent. The orders were in the following terms:"1. The deportation order of 28 January 1988The Minister has appealed from the whole of those orders.
against the applicant is quashed and that
it be set aside.
2. The Minister is estopped from signing
another deportation order on the grounds
relied on in making the deportation order
of 28 January 1988.
3. Liberty is reserved to either party to
apply for further orders in the event
that they become necessary.
4. The Minister pay the applicant's costs
of the proceedings including reserved
costs or costs of previous proceedings
where no costs were ordered.
5. Orders 1 and 4 be stayed until any appeal
process is completed but I order that,
until further order, the Minister be
restrained from deporting the applicant
from Australia.
6. The applicant's reporting condition 10
ordered on 2 December 1988 is deleted
and in lieu thereof the applicant is
ordered to report to the Regional
Director of Immigration at Chatswood by
telephone once a week in business hours.
7. These orders be taken out by the
applicant and filed and served not later
than 4 p.m. on the 3rd of March 1989."
2. In making the deportation order of 28 January 1988, the Minister purported
to act under s.12 of the Migration Act 1958 (Cth). That section provides:
"12. Where -3. It is not in dispute that, at the time of the making of the deportation order, s.12, in terms, applied to the respondent as he was not an Australian citizen, he had been convicted in Australia on two counts of manslaughter for which he had been sentenced, on 28 July 1983, to penal servitude for 10 years commencing on 16 December 1982 and he had, at the time of the commission of those offences, been present in Australia as a permanent resident for a period of less than 10 years.
(a) a person who is a non-citizen has, either
before or after the commencement of this
section, been convicted in Australia of
an offence;
(b) at the time of the commission of the offence
the person -
(i) was not an Australian citizen; and
(ii) had been present in Australia as a
permanent resident for a period of
less than 10 years or for periods
that, in the aggregrate, do not
amount to a period of 10 years; and
(c) the offence is an offence for which the
person was sentenced to death or to
imprisonment for life or for a period of
not less than one year,
the Minister may order the deportation of the person."
4. The circumstances which have given rise to the issues between the parties are referred to in detail in the judgments to be delivered by the other members of the Court and I need not set them out here.
5. The primary judge rejected a submission made on behalf of the present respondent that the power conferred by s.12 of the Migration Act had been exhausted and the section, therefore, provided no authority for the making of the deportation order of 28 January 1988. The circumstances which, taken together, were said to have resulted in the power being spent were that an order for the deportation of the respondent had been made on 23 July 1984 by the then Minister of State for Immigration and Ethnic Affairs, that that order had been revoked on 21 November 1985 following a recommendation to that effect by the Administrative Appeals Tribunal, that the decision embodied in the revocation order was confirmed by a further decision made on 6 November 1986 that a deportation order should not issue in respect of the respondent and that there had been no, or no significant, change in the matters relevant to the exercise of the power conferred by s.12 between the date of the revocation of the earlier deportation order and the making of the order under challenge.
6. In my respectful opinion, his Honour was correct in rejecting the submission. There is nothing in the language of s.12, or in the context in which it appears, to warrant the conclusion that Parliament intended that, absent any change in relevant circumstances, the power was to be regarded as spent upon its initial exercise in relation to a particular non-citizen. The power is, in my opinion, clearly one which may be exercised from time to time as occasion requires.
7. I am, however, unable to agree with the further conclusion reached by the primary judge that, given the existence of the power, the Minister was estopped from exercising it in relation to the respondent by reason of the terms of a letter dated 17 December 1985 addressed to the respondent by an official of the Department of Immigration and Ethnic Affairs consequent upon the revocation by the then Minister on 21 November 1985 of the deportation order made on 23 July 1984. The primary judge treated that letter as amnounting to a voluntary promise that the respondent "would only be liable to deportation in the event of further offences" and regarded it as creating or encouraging an assumption in the respondent that that promise would be kept. His Honour answered favourably to the respondent the question whether he had acted to his detriment as a result of that assumption and concluded that there was no public benefit which outweighed and supplanted the unfairness to the respondent thereby caused.
8. For a number of reasons I have reached a conclusion on this aspect of the
case which differs from that of the primary judge. The
first of these reasons
concerns the terms of the letter dated 17 December 1985. After referring to
the decision of the Minister
to revoke the deportation order and confirming an
oral warning which was said to have been administered to the respondent in
relation
to his convictions for manslaughter, the letter contained the
following crucial paragraph:
"You are warned that any further conviction9. In my opinion the letter provides no sufficient foundation for a plea of estoppel. It contains no representation of fact and no promise by the Minister that the power under s.12 of the Migration Act would not be exercised unless the respondent was convicted of another offence, or other offences, of the kind, and in the circumstances, referred to in that section. The letter, on its proper reading, amounts, in my opinion, to not more than what it purports to be, namely a warning as to the likely consequences of the commission of a further offence.
which renders you liable to deportation will
lead to the question of your deportation being
reconsidered by the Minister. Consequently, if
you again become liable to deportation, you
should expect that disregard of this warning
will weigh heavily against you when the Minister
reconsiders your case."
10. In the second place, I am unable to discover in the evidence any sufficient basis for concluding that, to the knowledge of the Minister, the respondent relied upon the suggested implied promise and did so to his detriment.
11. Thirdly, to construe the letter as amounting to a promise such as that relied upon by the respondent would, in my opinion, amount to an impermissible fetter upon the future exercise of the discretion conferred by s.12: Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54.
12. A further matter raised before the primary judge by the present respondent - a matter upon which his Honour did not find it necessary to reach a definitive conclusion - was that an issue estoppel arose as between the Minister (and his successors in office) and the respondent by reason of the recommendation by the Administrative Appeals Tribunal that the deportation order of 23 July 1984 should be revoked and its subsequent revocation in accordance with that recommendation. In my opinion, the submission lacks substance and must be rejected.
13. The remaining substantial matter is whether the respondent was afforded an adequate opportunity to make submissions to the Minister before the deportation order of 28 January 1988 was made. The evidence clearly establishes that on 22 October 1987, that is to say prior to the making of the deportation order, an officer of the Department of Immigration, Local Government and Ethnic Affairs had personally informed the respondent that the Minister proposed to consider the question whether a deportation order should be made and invited him to make written submissions to the Minister in that regard. The evidence, however, also establishes that the Minister, in exercising his discretionary power, took into account, and gave weight to, certain matters adverse to the respondent which were set out in reports dated 24 September 1986 and 12 February 1987 respectively made in relation to the respondent by officers of the Parole Service of New South Wales and a report by the New South Wales Prison Medical Service. Neither these reports nor the substance of their contents had been made available to the respondent by the Parole Board of New South Wales, relying for this purpose upon s.45 of the Probation and Parole Act 1983 (N.S.W.).
14. Whatever may have been the justification for the prison or parole authorities withholding those reports from the respondent, the Minister, consistently with what was said by the High Court in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, was bound, if he proposed to take those matters into account, to afford the respondent an opportunity to make submissions in relation to them. This could have been done without necessarily giving the respondent copies of the reports if the Minister had adequate grounds for declining to do so. For example, the reports could have been made available to the respondent's legal advisers. But, by whatever means it could be achieved, it was incumbent on the Minister to give notice of the matters derived from those reports on which he intended to rely so that submissions could be made in relation to those matters if the respondent chose to do so.
15. The Minister's reliance upon those reports when he had failed to give the respondent an opportunity to make submissions in relation to them requires that the deportation order of 28 January 1988 be set aside.
16. For completeness, I should add that I agree with the other members of the Court that the evidence does not establish that the Minister failed to take into account relevant considerations or took into account irrelevant considerations.
17. In the result, I would allow the appeal from so much of the judgment under appeal as held that the Minister was estopped from signing another deportation order on the grounds relied upon in making the deportation order of 28 January 1988 and that, until further order, the Minister be restrained from deporting the applicant from Australia. Those orders, being Orders 2 and 5 made by the primary judge on 2 March 1989, should be set aside. Otherwise the appeal should be dismissed. I draw attention to Order 6 which varied the order made by the primary judge on 2 December 1988. As the latter order is not before us, it is inappropriate that the Court as presently constituted make any order with respect to that order or with respect to Order 6. Either party is, of course, at liberty, if so advised, to make application to a judge of the Court in that regard. As both parties have partially succeeded before this Court, I would make no order as to the costs of the appeal.
The appellant, the Minister for Immigration, Local Government and Ethnic Affairs, appeals against an order of a single Judge of this Court under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") quashing and setting aside a decision of the appellant to order the deportation of the respondent.
2. On 16 June 1983, the respondent was convicted of the manslaughter on 16 December 1982 of his parents-in-law and on 28 July 1983 he was sentenced to ten years imprisonment. On 23 July 1984, the then relevant Minister signed an order for the deportation of the respondent based on the commission of the offence of 16 December 1982. The respondent then applied to the Administrative Appeals Tribunal ("the AAT") for a review of the Minister's decision that he be deported. After a hearing of that application, the A.A.T. constituted by Mr Deputy President Todd on 6 September 1985 recommended to the Minister that the deportation order in respect of Mr Kurtovic be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation.
3. In accordance with that recommendation, the successor to the previous
Minister on 28 November 1985 revoked the deportation order.
That revocation
was notified to Mr Kurtovic by a letter of 17 December 1985 from a
departmental officer on behalf of the Regional
Director of the Department.
Omitting formal parts, that letter was in these terms:
"I am writing to confirm that the Minister for Immigration4. On 24 January 1986, the New South Wales Parole Board refused an application by Mr Kurtovic for release on parole. On 18 July 1986, the New South Wales Court of Criminal Appeal adjourned the hearing of an appeal against that refusal. When announcing the adjournment, Street C.J. observed:
and Ethnic Affairs has decided to revoke the deportation
order signed against you.
This letter is to confirm the oral warning administered
to you today in relation to your conviction for
Manslaughter at Sydney District Court on 28/7/83 which
rendered you liable to deportation from Australia
pursuant to Section 12 of the Migration Act 1958.
You are warned that any further conviction which
renders you liable to deportation will lead to the
question of your deportation being reconsidered by the
Minister. Consequently, if you again become liable to
deportation, you should expect that disregard of this
warning will weigh heavily against you when the
Minister reconsiders your case.
I enclose relevant extracts from the Migration Act
on deportation liability and a copy of the Government's
Criminal Deportation Policy. I suggest that in your own
interest, you study these papers fully."
"This matter comes before the Court as an application5. The same Minister who had acted on the A.A.T.'s recommendation to revoke the deportation order didreconsider his earlier decision but decided not to issue a new deportation order. Shortly afterwards the Court of Criminal Appeal dismissed Mr Kurtovic's appeal against the withholding of parole.
to review the decision of the Parole Board of
24 January 1986 to withhold parole from the applicant.
The basis of the application is that the Administrative
Appeals Tribunal, in September of last year, recommended
to the Minister that a current deportation order should
be revoked. The Minister acted in accordance with this
recommendation and revoked the deportation order. It is
proposed to contend that the same reasons that led to
the recommendation to revoke the deportation order
should lead to the granting of parole. We should say
that we have the gravest concern regarding weight of
those reasons when considered in the context of the
entirety of the information in the papers before us.
The papers before the Court in this matter disclose
matters of grave concern regarding the justification
for the revocation of the deportation order. They
include material that was not before the Administrative
Appeals Tribunal. There are also subsequent
representations from persons who consider that they
are placed at risk in consequence of the prospect of
the applicant not being deported; these, and the other
material, are plainly of very significant relevance.
It seems to us that the matter is one in which the
Minister might well wish to reconsider his decision
revoking the deportation order, in the light of the
whole of the material in this file. There is a
compelling case for concluding, pursuant to s8 of the
Migration Act, that deportation would be appropriate
and for concluding that, in the entirety of the
circumstances, the acceptability of the recommendation
of the Administrative Appeals Tribunal should be
reconsidered by the Minister. Until that has taken
place it would seem to be preferable that the matter
be adjourned.
The applicant in fact seeks an adjournment on the
basis of difficulty in obtaining certain documents,
so that the adjournment in fact will both meet the
immediate difficulties concerning the applicant in
preparing the matter, but more importantly it will
afford the Minister an opportunity of considering
again the question of the applicant's deportation.
In order to assist the Minister in that regard,
we direct that the Minister be furnished with a
complete copy of the papers before the Court in
today's application, together with a copy of these
observations."
6. On 22 October 1987, Mr Kurtovic was interviewed by a departmental officer and told that further consideration was to be given to the question of deportation. In the course of that interview Mr Kurtovic intimated that he saw a need to speak with his lawyer whom he named. He was invited to make written submissions and was told that if he did so they would be considered by the Minister.
7. On 28 January 1988, yet a third Minister for Immigration considered
whether Mr Kurtovic should be deported, and approved a departmental
recommendation for the issue of a deportation order. An application was then
made to this Court for review of that decision under
the provisions of the
Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). That
application was heard by Einfeld J. Who made, amongst others, the following
orders:
"1. The deportation order of 28 January 19888. The learned Judge at first instance upheld a contention advanced on behalf of Mr Kurtovic that the Minister was estopped from issuing a second deportation order in the absence of some changed circumstances arising since the revocation of the first order. He also ruled that Mr Kurtovic had been denied natural justice in the course of events which led to the making of the decision of 28 January 1988, and that the decision then made was an improper exercise of the power because of a failure to take into account relevant considerations and a reliance on irrelevant considerations. His Honour rejected arguments by Counsel for Mr Kurtovic that there was no power to make a second deportation in respect of the same Australian resident, and that an estoppel precluded the making of such an order.
against the applicant is quashed and that
it be set aside.
2. The Minister is estopped from signing another
deportation order on the grounds relied on in
making the deportation order of 28 January 1988."
9. I share the doubts expressed by Gummow J., in his judgment which I have had the advantage of reading in draft, as to whether, properly construed, the letter written on behalf of the Minister on 17 December 1985 amounts to a representation that a further order for the deportation of Mr Kurtovic would not be made in the absence of changed circumstances. However, it is clear that the power conferred on the Minister by s.12 of the Migration Act 1958 is one for the exercise of a public discretion. If it is not exercisable once and for all in respect of the same non-citizen, the Minister cannot by contract or any form of estoppel preclude himself or any successor to his office from exercising it at all, or in a particular way, in the future. Se e.g. New South Wales Trotting Club Ltd. v. Glebe Municipal Council (1937) 37 SR (NSW) 288 at 307 and 313 and Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 74.
10. In Robertson v. Minister of Pensions (1949) 1 KB 227 it was held by
Denning J. that an assurance by a public authority that a disability had been
accepted as attributable to military
service which had been acted on by a
serviceman, estopped the relevant Minister from later asserting that the
disability was not
attributable to war service. However, his Lordship there
seems to have regarded the acceptance of the disability as attributable
to war
service as something that under the applicable Royal Warrant was contemplated
as occurring once and for all. At all events,
although it was referred to in
argument in Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB
416 it was not regarded by Lord Parker C.J. with whom Winn and Widgery JJ.
agreed, as diluting in any way the principle that a public
authority cannot by
contract fetter the exercise of its discretion and no estoppel can be raised
to prevent or hinder the exercise
of the discretion. It is also significant
that the Southend-on-Sea Corporation case was distinguished by Windeyer J. in
Brickworks
Ltd. v. Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 where his Honour
observed at 577:
"Does not this found an estoppel? It was argued11. The representation relied on as founding an estoppel in the present case, if having the effect contended for, clearly went to the exercise in the future of the Minister's discretion. Although the letter of 17 December 1985 contained the assertion that the Minister had revoked the subsisting deportation order, the representation which Mr Kurtovic has sought to import into it is that no second deportation order would be made in the absence of changed circumstances. That was not a representation of the kind identified in Robertson v. Minister of Pensions and Brickworks Ltd. v. Warringah Corporation as to a past or existing exercise once and for all of a power or discretion.
that it could not do so because estoppel by
representation cannot prevent the performance of
a statutory duty or the exercise of a statutory
discretion. There is no doubt about the principle;
but I doubt its application to this case. The
decision of the Court of Appeal in Southend-on-Sea
Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB
416 was relied on. The facts of that case do bear
a superficial resemblance to those of this case.
But there is a distinction. There the Corporation
had, by its engineer, said that its permission for
the use of land as a builder's yard was not in
fact and law required. It was mistaken in this view;
and it was held that what the engineer had said could
not create an estoppel preventing the Corporation from
exercising its statutory discretion to forbid the
land being used as a builder's yard. That is to
say, the Corporation had in effect said to the
respondent company there, 'you do not need our
permission; we have no discretion to prevent your
action'. In the present case, on the other hand,
the Council said in effect, 'you do need our
permission; we have a discretion which we have
exercised in your favour'. It seems to me that,
in the circumstances of this case, the Council was
estopped from denying that it had exercised its
discretion in the manner it had said it had done.
The case is not, as I see it, one in which a
consent once given could be withdrawn. That
could only, I think, be so if the consent were
expressly given upon a condition that it might be
withdrawn in specified events. And, moreover, it
is not now said that consent was given and later
withdrawn. The allegation now is that it was
never given. The case of The New South Wales
Trotting Club v. Council of the Municipality of
Glebe (1936) 37 SR (NSW) 288; 54 WN 77 is entirely
different from the present case."
12. It will be apparent from what I have already said, that I do not regard the power conferred on the Minister by s.12 of the Migration Act as exercisable once and for all. I agree, with respect, with the conclusion reached by Gummow J. for the reasons which he has indicated that it is a power exercisable from time to time whether or not there has been any change in the relevant facts.
13. I also agree with Gummow J. that the doctrine of issue estoppel has no application to the present case. As I understand the argument advanced on behalf of Mr Kurtovic on this aspect, it is that the decision of the A.A.T. of 6 September 1985 to recommend the revocation of the deportation order concluded the issue between Mr Kurtovic and the Minister of whether Mr Kurtovic should be deported in the light of the relevant facts as they were at that time. The power which the A.A.T. exercised on Mr Kurtovic's application was that conferred by s.43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 setting aside the decision of 23 July 1984 and remitting the matter to the Minister for reconsideration in accordance with the recommendations of the A.A.T.
14. No particular state of fact or law has been identified as essential to
the ultimate conclusion which the A.A.T. reached. The
existence of a previous
adjudication as to a state of fact or law, (the issue), is prerequisite for
the application of issue estoppel.
This was made clear in the following
passage from the judgment of Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at
531-532:
"A judicial determination directly involving an issue15. Because of the nature of the decision of the A.A.T. affecting Mr Kurtovic, it is unnecessary in the present case to resolve whether, as was doubted in Commonwealth v. Sciacca (1988) 78 ALR 279, a determination of the A.A.T. can give rise to an issue estoppel.
of fact or of law disposes once for all of the issue,
so that it cannot afterwards be raised between the
same parties or their privies. The estoppel covers
only those matters which the prior judgment, decree
or order necessarily established as the legal
foundation or justification of its conclusion,
whether that conclusion is that a money sum be
recovered or that the doing of an act be commanded
or be restrained or that rights be declared. The
distinction between res judicata and issue-estoppel
is that in the first the very right or cause of
action claimed or put in suit has in the former
proceedings passed into judgment, so that it is
merged and has no longer an independent existence,
while in the second, for the purpose of some other
claim or cause of action, a state of fact or law is
alleged or denied the existence of which is a matter
necessarily decided by the prior judgment, decree
or order.
Nothing but what is legally indispensable to the
conclusion is thus finally closed or precluded.
In matters of fact the issue-estoppel is confined
to those ultimate facts which form the ingredients
in the cause of action, that is, the title to the
right established. Where the conclusion is against
the existence of a right or claim which in point
of law depends upon a number of ingredients or
ultimate facts the absence of any one of which would
be enough to defeat the claim, the estoppel covers
only the actual ground upon which the existence of
the right was negatived. But in neither case is the
estoppel confined to the final legal conclusion
expressed in the judgment, decree or order. In the
phraseology of Coleridge J. in R. v. Inhabitants
of the Township of Hartington Middle Quarter [1855] EngR 264; (1855) 4
E & B 780, at p 794 [1855] EngR 264; (119 ER 288, at p 293), the
judicial determination concludes, not merely as to
the point actually decided, but as to a matter which
it was necessary to decide and which was actually decided
as the groundwork of the decision itself, though not then
directly the point at issue. Matters cardinal to the
latter claim or contention cannot be raised if to raise
them is necessarily to assert that the former decision
was erroneous."
16. On the question of whether the Minister's decision was an improper
exercise of power as contemplated by s.5(1)(e) of the ADJR Act, Einfeld J.
observed:
"Neither party addressed specific argument on this17. However, the Minute of 14 January 1988 on which the Minister relied in deciding to issue the second order for the deportation of Mr Kurtovic listed as one of the factors against deportation identified by the Minister who issued the first deportation order:
claim, which was not clearly particularised,
possibly because it would have been merely
repetitive of the other claims. There was no
evidence or no new evidence, lay or expert, which
made possible any conclusion that recidivism was
likely, or that there were mental or other health
reasons for deportation. It seems to me that
these matters, amongst others, were relevant
considerations to be considered if rational and
not impulsive or politically motivated conclusions
were to be drawn. They do not appear to have
been considered, certainly not in relation to the
position as it was in 1988 when the relevant
decision was made. The inference I draw is that
relevant considerations were omitted and that
irrelevant considerations were relied on."
"(iii) the applicant's prospects forReference was also made in the same minute to a "comprehensive submission" which had been placed before the second Minister who revoked the first deportation order. That submission, according to the minute, canvassed, amongst other things:
rehabilitation appear to be reasonable
and he now has no overt symptoms of any
mental illness. I regarded the risk of
recidivism as low."
"(b) the problems that led to the commission of18. Among the comments made by the minute writer on the representations contained in the comprehensive submission were:
the crime by Kurtovic (ie his belief that his
late parents-in-law had sought to prevent him
from seeing his daughter) would arise again
if he was not deported and could lead to a
similar tragedy in that there would be
problems between Kurtovic and his former wife
in relation to access to their daughter as
the family would be defending strenuously any
application for access on any basis through
every possible avenue open to them in the
Family Court."
"(b) although the Minister in ordering deportationAs well reference was made in the minute to advice received on 8 April 1987 from the Secretary of the New South Wales Parole Board which contained these passages:
assessed Kurtovic's rehabilitation prospects
as being 'reasonable' and the risk of
recidivism as 'low' the AAT found on the
basis of its own first hand evaluation of the
evidence that it could make an even more
confident/favourable assessment, describing
his rehabilitation prospects to be in fact
'very good' and the risk of recidivism as
'very low indeed' (see para 5 (a) (iii)).
(c) in view of the AAT's findings on the evidence
that the risk of recidivism was so low, the
concern about the possible affect on the
families concerned if Kurtovic were permitted
to remain in Australia appears to be
misconceived."
"The Parole Board is disturbed about theIn addition, the departmental minute contained this paragraph:
circumstances and facts of this case and is
gravely concerned that Mr Kurtovicn may commit
further violent offences if released. The Board
also noted the sentencing Court's belief that the
prisoner would be deported.
Mr Kurtovic will be released by remission and
will have no supervision or counselling by the
Probation and Parole Service when released.
Further the prison Medical Service advised that
Mr Kurtovic will not undergo psychiatric
examination or counselling."
"26. Further information was provided by the19. An extract from the parole officer's report of 12 February 1987 which was reproduced in the departmental minute concluded with these words:-
Parole Board on 8/5/87, namely, parole officer's
reports (two reports dated 24/9/86 and 12/2/87 -
papers commencing at Annex 'L' refer) and a
report from the Prison Medical Services, dated
24/3/87 - Annex 'M'. The Parole Board mentioned
the report of 24/9/86 was not provided to Kurtovic
because of the Board's concern for the writer and,
furthermore, 'It is stressed that in no circumstances
should this report be made available to the prisoner'."
"It is reiterated that Mr Kurtovic still appears20. Two lengthy paragraphs of the minute were gathered under the heading "EXTENT AND PROSPECTS OF REHABILITATION/RISK OF RECIDIVISM." The second of those paragraphs was summarised as follows in the antepenultimate paragraph of the minute:
to be psychiatrically disturbed and is in need of
treatment before any decision is made regarding
release."
"(ii) Possibility of recidivismFinally as one of the factors in favour of deportation there was listed:
The matters convassed (sic) at paragraph 37
above show a divergence of opinion on the question
of recidivism and may be summarised as follows
- in 1983 the sentencing judge, having the
benefit of 4 psychiatric reports, remarked
that any assessment of Kurtovic re-offending
should be made in the light of contemporary
information.
- in 1985 the AAT, with the benefit of a
single psychiatric report, took the view
that 'the risk of a repetition of violent
conduct is very low indeed'.
- in January 1986 the Parole Board withheld
parole because of the reservations about how
Kurtovic would react to possible denial of
access to his daughter. The Parole Board
urged Kurtovic to participate in the works
release program (which Kurtovic subsequently
declined to enter).
- in July 1986 the Court of Criminal appeal,
with the benefit of extensive reports,
expressed disagreement with the AAT's
judgment.
- the Probation and Parole reports of 24/9/86
and 12/2/87 opined that Kurtovic was
psychiatrically disturbed and needed
treatment before release into the community
(Kurtovic has refused psychiatric assessment
or assistance)."
"(ii) The risk of Kurtovic re-offending is difficult21. In the light of those extensive references to the likelihood of recidivism and the mental health of Mr Kurtovic, I am unable, with respect, to draw the inference, which Einfeld J. did, that the Minister, in deciding to issue the second deportation order, failed to take those presumptively relevant considerations into account. Nor have I been able to identify any irrelevant considerations (which his Honour did not specify) which the Minister took into account. Accordingly, I do not regard the Minister's exercise of his power as improper on either of the grounds indicated in s.5(2)(a) and (b) of the ADJR Act.
to assess and this is reflected in the
contrasting views expressed by various experts
and authorities. It is contended that the
Australian community should not be expected
to bear any level of risk."
22. I agree with Gummow J. that the invitation extended to Mr Kurtovic on 22 October 1987 to make written submissions for consideration by the Minister when reviewing the question of deportation, precludes a conclusion that there was a denial of natural justice in the sense that no opportunity was afforded to Mr Kurtovic to be heard generally before the Minister made his decision. However, a denial of natural justice was also said to have occurred as a result of a particular, as well as a general, failure to afford an opportunity to be heard.
23. That subsidiary argument rested on the inclusion in the material submitted to the Minister of two parole officers' reports dated 24 September 1986 and 12 February 1987 and a report from the New South Wales Prison Medical Service. When supplying a copy of the report of 24 September 1986 to the immigration authorities, the Parole Board indicated that a copy had not been provided to Mr Kurtovic because of the Board's concern for the writer of the report and for persons named in it who had provided information to the writer. The Board also advised the Department that "it is stressed that in no circumstances should this report be made available to the prisoner". It was open to the Board to act on that view which was apparently shared by the relevant officers of the Department of Immigration and Ethnic Affairs, because of the provisions of what was then s.45 of the Probation and Parole Act 1983 (NSW); (see now s.49 of the Sentencing Act 1989 (NSW)).
24. However, the fact that considerations of safety of the reporting officers or their informants or of security may have justified the Parole Board in withholding the reports from the prisoner does not entail that the Minister could properly deny Mr Kurtovic an opportunity of responding to the matter contained in the reports. Such an opportunity could have been afforded, as Counsel for the Minister accepted, by making the reports available upon appropriate undertakings as to confidentiality, to the legal adviser named by Mr Kurtovic at the interview on 22 October 1987 or to some other suitable person nominated by her.
25. Nevertheless, Counsel for the Minister contended that the Minister was absolved from the need to make the reports available in some such way as I have just indicated, because Mr Kurtovic had declined the general invitation extended to him at the interview to make written submissions to the Minister. I reject that argument. There is nothing to suggest that Mr Kurtovic was even aware, when he declined the general invitation, that the Minister had before him reports from parole officers and the Prison Medical Service. It is true that the Court of Criminal Appeal in its statement on 18 July 1986 made reference to representations from persons who considered themselves at risk if Mr Kurtovic were permitted to remain in Australia, and to "the other material" not specified, which had not been before the A.A.T.. However those references fall far short of providing a basis for imputing to Mr Kurtovic, in October 1987, an awareness of comments by parole or medical officers on which the Minister might rely in coming to a decision adverse to him. Accordingly, I consider that the decision of the Minister was vitiated like that in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 by the failure to bring to the notice of Mr Kurtovic potentially prejudicial matter so as to give him an opportunity to answer it.
26. I have reached the conclusion which I have just indicated without any need to reinforce, by reference to the legitimate expectation said to have been created by the Criminal Deportation Policy announced by the Minister on 4 May 1983 and the Transitional Policy announced on 28 March 1984, the obligation on the Minister to afford an opportunity to be heard on potentially prejudicial matter. However, I agree with Gummow J. that for the reasons which he has explained the existence of a legitimate expectation does not create a substantive, as distinct from a procedural, protection for the person in whom the expectation has been created.
27. Therefore, on the sole ground of a denial of natural justice constituted by the failure to give Mr Kurtovic an opportunity to respond to the matters raised by the reports of the probation officers and that of the Prison Medical Service, I would affirm the order of Einfeld J. that the decision of the Minister be set aside. However, consistently with what I have indicated earlier in these reasons, I agree with Neaves J. that the appeal should be allowed to the extent of setting aside paragraph 2 of the order of Einfeld J. which is reproduced at p 5 above. A necessary consequence of allowing the appeal to that extent is that the injunction granted by Einfeld J. restraining the Minister, until further order, from deporting the applicant from Australia, should be dissolved. I also agree with the order as to costs proposed by Neaves J.
This is an appeal from the decision of a Judge of this Court (Einfeld J.)
ordering, inter alia, that the deportation order made
by the appellant against
the respondent on 28 January 1988 be set aside pursuant to the provisions of
the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). His
Honour's judgment is reported in (1989) 86 ALR 99.
The Facts
2. On 16 December 1982, the respondent, a non-citizen who had been present in
Australia for less than ten years, shot and killed
his parents-in-law.
Following conviction in New South Wales for manslaughter in 1983 (and
sentencing to ten years penal servitude)
the appellant's predecessor signed a
deportation order on 23 July 1984 against the respondent pursuant to s. 12 of
the Migration Act 1958 ("the Migration Act"). Section 12 provides as
follows:
"12. Where -The respondent then appealed to the Administrative Appeals Tribunal which recommended on 6 September 1985 that the decision to deport the respondent be revoked. The Minister adopted that recommendation on 25 November 1985 by revoking the Deportation Order made on 23 July 1984.
(a) a person who is a non-citizen has,
either before or after the commencement
of this section, been convicted
in Australia of an offence;
(b) at the time of the commission of the
offence the person -
(i) was not an Australian citizen;
and
(ii) had been present in Australia
as a permanent resident for a
period of less then 10 years
or for periods that, in the
aggregate, do not amount to a
period of 10 years; and
(c) the offence is an offence for which
the person was sentenced to death or
to imprisonment for life or for a
period of not less than one year,
the Minister may order the deportation of
that person."
3. On 17 December 1985, an officer of the appellant's Department wrote a
letter to the respondent which confirmed that the Minister
had decided to
revoke the deportation order signed by the respondent, and continued:
"This letter is to confirm the oral4. On 24 January 1986, the Parole Board of New South Wales refused an application by the respondent to be released on parole. The respondent appealed against that decision to the New South Wales Court of Criminal Appeal, which took the view that it was appropriate for it to recommend to the appellant Minister that he reconsider the decision revoking the deportation order and adjourned the hearing of the appeal pending such reconsideration. The Minister did reconsider the decision, but decided, on 6 November 1986, not to disturb the status quo. Five days later the Court of Criminal Appeal dismissed the respondent's appeal against the decision to withhold parole.
warning administered to you today in
relation to your conviction for
Manslaughter at Sydney District Court on
28/7/83 which rendered you liable to
deportation from Australia pursuant to
Section 12 of the Migration Act 1958.
You are warned that any further
conviction which renders you liable to
deportation will lead to the question of
your deportation being reconsidered by
the Minister. Consequently, if you again
become liable to deportation, you should
expect that disregard of this warning
will weigh heavily against you when the
Minister reconsiders your case."
5. On 22 October 1987, an officer of the Department of Immigration interviewed the respondent, informing him that further consideration was to be given to the question of his deportation, and inviting him to make written submissions which would be considered by the Minister. On 28 January 1988, the Minister signed a deportation order against the respondent, pursuant to s. 12 of the Migration Act. It is in respect of the decision to issue that deportation order that the respondent seeks judicial review.
6. The matter came before Einfeld J. who held that the deportation order of
28 January 1988 should be set aside on the grounds that
the appellant was
estopped from making that deportation order, that a breach of the rules of
natural justice had occurred in the
making of the decision, and that relevant
considerations were not taken into account and irrelevant considerations were
taken into
account.
Estoppel in Administrative Law
7. Conventional estoppel, estoppel by representation (whether as to present facts - "common law estoppel" - or as to the future - "equitable or promissory estoppel"), proprietary estoppel, and issue estoppel are each a genus of the species "estoppel" which may conceivably have a role in administrative law. In what follows, I am concerned principally with estoppel by representation, particularly as to future conduct.
8. The respondent submits that the letter of 17 December 1985 from an officer of the appellant's Department to the respondent carried the implication that if the respondent gave no further cause to be deported, then he would be free to continue his life here. His Honour found that this implication gave rise to an estoppel which barred the making of the deportation order in question. There was no reliance upon an express representation as to the appellant's future conduct. The implication was said to arise from the statement that "any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister".
9. It may be conceded that an estoppel by representation may be founded upon an implication drawn from an express statement. But in this case, I find it difficult to see any grounds for such an implication as that drawn by his Honour. The statement made by the departmental officer does not purport to state exhaustively the grounds on which reconsideration of the respondent's deportation would be made. It merely warns the respondent that a subsequent incident of a similar kind to that which had occurred in the instant case would lead to a reconsideration, and would be a strong factor against him. Thus, any argument that the Minister was estopped from exercising his discretion again must fail at the threshold for want of a sufficiently clear and unambiguous representation to the effect contended for; cf. Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 435-437.
10. Even if the statement in question did bear the implication contended for, there are considerable difficulties in the way of propounding an estoppel against the exercise of an administrative discretion.
11. As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.
12. The principles governing the application of estoppel by representation,
or promissory estoppel, and related doctrines, have evolved
largely in the
context of private law. Difficult issues arise as to the extent to which
those principles are to be applied in administrative
law. The generally
accepted proposition is that:
"Estoppel cannot operate to prevent or(Halsbury's "Laws of England", 4th Ed., Vol. 44, "Statutes" para 949.) A recent illustration of the application of that principle is Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 695. But upon what basis does this proposition rest, and are there exceptions or qualifications to it?
hinder the performance of a positive
statutory duty, or the exercise of a
statutory discretion which is intended to
be performed or exercised for the benefit
of the public or a section of the public."
13. The foundation of the received doctrine recently was described as follows
by seven judges of the United States Supreme Court,
in a judgment delivered by
Stevens J. In Heckler v Community Health Services of Crawford County Inc. [1984] USSC 103; 467
US 51 at 60 (1984) the Court said:
"When the Government is unable to enforceProfessor Koch (in his treatise "Administrative Law and Practice" 1984, para 10.57) has criticized recent Supreme Court authority as implying that estoppel could be justified in some circumstances "but steadfastly (refusing) to articulate what those circumstances would be". The traditional view in the United States has been that "the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit": Utah Power & Light Co. v United States [1917] USSC 68; 243 US 389 at 409 (1917). The basis upon which that doctrine rests is considered in the following passage from Mr. D.K. Thompson's article "Equitable Estoppel of the Government" (1979) 79 Col. Law Rev. 551 at 554:
the law because the conduct of its agents
has given rise to an estoppel, the
interest of the citizenry as a whole in
obedience to the rule of law is
undermined. It is for this reason that
it is well settled that the Government
may not be estopped on the same terms as
any other litigant. Petitioner urges us
to expand this principle into a flat rule
that estoppel may not in any
circumstances run against the Government.
We have left the issue open in the past,
and do so again today. Though the
arguments the Government advances for the
rule are substantial, we are hesitant,
when it is unnecessary to decide this
case, to say that there are no cases in
which the public interest in ensuring
that the Government can enforce the law
free from estoppel might be outweighed by
the countervailing interest of citizens
in some minimum standard of decency,
honor, and reliability in their dealings
with their Government. But however heavy
the burden might be when an estoppel is
asserted against the Government, the
private party surely cannot prevail
without at least demonstrating that the
traditional elements of an estoppel are
present."
"Several justifications have been offeredMuch to the same effect are observations by the Court of Appeals for the First Circuit in Phelps v Federal Emergency Management Agency [1986] USCA1 65; 785 F 2d 13 at 16-17 (1986); see also Berger "Estoppel against the Government" (1953-54) 21 Univ. of Chicago L. Rev. 680 at 686.
for the traditional rule. Constitutional
underpinnings have been found in the
doctrine of sovereign immunity, based on
an argument that estoppel of government
claims and defenses would result in the
impermissible forfeiture of federal
rights without sovereign consent.
However, the force of this argument has
diminished considerably with the waning
of the sovereign immunity doctrine
itself. Firmer constitutional ground for
the no-estoppel rule has been derived
from the doctrine of separation of
powers, since the effect of an estoppel
is generally to prevent disavowal of
obligations even though they transgress
the limits of authority delegated
executive agencies by Congress. . . .
Beyond constitutional considerations lie
more general concerns of public policy.
In one of its earlier decisions on the
issue, the Supreme Court stressed that
holding the government bound by improper
acts of its agents might promote fraud
and collusion (Lee v Munroe [1813] USSC 2; 11 US 366,
369 (1813)). Fear of uncontrollable
liability and crippling losses to the
public treasury have also played a role
in sustaining the rule (See, e.g. The
Floyd Acceptances [1868] USSC 33; 74 US 666, 681 (1869)).
In addition, considerations of
administrative efficiency and flexibility
have buttressed resistance to the use of
estoppel against the government. In this
regard, courts have reasoned that
executive responsibilities for adapting
and correcting regulations and procedures
might be impaired if estoppel could be
used to block the retroactive
implementation of such changes."
14. In Canada, the connection between estoppel and ultra vires has been put
as follows by Mr. P. McDonald in his article "Contradictory
Government Action:
Estoppel of Statutory Authorities" (1979) 17 Osgoode Hall L.J. 160 at 161:
"No estoppel can arise out of the acts ofThe learned author goes on to say that most of the Canadian cases in which it is said that the Crown cannot be estopped involve the Crown in its capacity as a statutory authority, hence the subordination of executive action to the terms of legislation. Reference is made to observations to that effect by Rand J. in St. Ann's Island Shooting & Fishing Club Ltd. v The King (1950) 2 DLR 225 at 232.
an official who enjoys no authoritative
power of decision in relation to the
rights and obligations in question. Why
should this be so? The answer is the
supremacy of legislation. Ex hypothesi,
legal relations arising from legislation
are independent of official action.
Consequently, nothing can be made to
hinge on the conduct of officials without
disturbing the legal consequences called
for by the statute. It really has
nothing to do with any privileged
position of the Crown."
15. The same strand of thought is apparent from the remarks of Lord Greene
M.R. in the unreported decision Minister of Agriculture
and Fisheries v
Hulkin, which was dealt with at length by Cassels J. in Minister of
Agriculture and Fisheries v Matthews (1950) 1 KB 148 at 153-154. In Hulkin's
Case, the issue was whether the Defence (General) Regulations 1939 (U.K.) gave
the Minister power to create
a tenancy in respect of certain land. It was
submitted that even if the regulations gave no such power, nevertheless the
Minister
was estopped from denying that the document in question did create a
tenancy. Lord Greene M.R. said of that submission:
"Accepting the view which Mr. Bailleu16. However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding; see N.S.W. Trotting Club Ltd. v Glebe Municipal Council (1937) 37 SR (NSW) 288; Cudgen Rutile (No. 2) Pty. Ltd. v Chalk (1975) AC 520 at 533; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd. (1962) 1 QB 416 at 423-425. Of the lastmentioned decision, Sir Alexander Turner ("The Law Relating to Estoppel by Representation", 3rd Ed., 1977, p 150) said:
(the defendant's counsel) accepts, that
the Minister had no power under the
regulations to grant a tenancy, it is
perfectly manifest to my mind that he
could not by estoppel give himself such
power. The power given to an authority
under a statute is limited to the four
corners of the power given. It would
entirely destroy the whole doctrine of
ultra vires if it was possible for the
donee of a statutory power to extend his
power by creating an estoppel."
"It has been authoritatively laid down17. As I have indicated, the estoppel upon which reliance is placed by the respondent as his primary argument in the present case would, if allowed, not produce a result which would be ultra vires the powers of the appellant under the Migration Act. The present primarily is a case of an alleged estoppel which would prevent the exercise of a discretion reposed in the appellant by the Migration Act. Nevertheless, in view of other arguments submitted by the respondent, it is appropriate to deal briefly with what have been said to be exceptions or qualifications to the general rule against estoppels working in favour of ultra vires decisions.
(and it must inexorably follow from
principle) that there is no logical
distinction, as regards the point now
under discussion, between a duty imposed,
and a discretion conferred, by statute in
the public interest; the fact that the
duty is imposed or discretion given in
the public interest should be sufficient,
on the ground of public policy, to
prevent any estoppel arising whereby the
performance of the duty or the exercise
of the discretion is frustrated. If a
public authority cannot by contract
fetter the exercise of its discretion, it
can hardly by the invocation of the
doctrine of estoppel be brought to the
same position. But it must appear that
frustration of its duty or of its
discretion will be the result of allowing
the estoppel; anything less than this
will be insufficient as an affirmative answer."
18. It is best first to distinguish cases where a decision maker cannot make a second decision by which he resiles from the first decision, not because he is estopped from doing so but because the power in question is spent by the making of the first decision. The point may be illustrated by reference to N.S.W. Trotting Club Ltd. v Glebe Municipal Council (supra). Section 252 of the Local Government Act 1919 (N.S.W.) provided that a public road might not be closed by the Minister unless the consent of the local council was first obtained. The Full Court held (Jordan C.J. dissenting) that, in bona fide exercise of its discretion, the council could withdraw its consent at any time before the Minister gave his consent. Jordan C.J. held that the council was functus officio when it gave its initial consent. All members of the Court agreed that if the council had power to withdraw its consent, it was not to be estopped from exercising that power. Another example is provided by Wells v Minister of Housing and Local Government (1967) 1 WLR 1000.
19. There was "an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise": Halsbury's "Laws of England", 1st Ed., Vol. 27, p 131. However, sub-s. 33 (1) of the Acts Interpretation Act 1901 (which was modelled upon sub-s. 32 (1) of the Interpretation Act 1889 (U.K.)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. This appears to have been the explanation given by the English Court of Appeal in Western Fish Products Ltd. v Penwith District Council (1981) 2 All ER 204 at 219; cf. Lever Finance Ltd. v Westminster (City) London Borough Council (1971) 1 QB 222. Another example may be found in the judgment of Windeyer J. in Brickworks Ltd. v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 at 577. In my view, this also is the basis upon which there rest two decisions upon which counsel for the respondent relied on this appeal, namely Livingstone v City of Westminster (1904) 2 KB 109 at 120, and In re 56 Denton Road, Twickenham (1953) Ch 51 at 56-57; that is how Eveleigh L.J. saw the matter when, in Rootkin v Kent County Council (1981) 2 All ER 227 at 234-235, he discussed Livingstone's Case.
20. I further consider this aspect with reference to s. 12 of the Migration Act under the heading Was the Minister Functus Officio?
21. Then there are cases where, upon its proper construction, the legislation may permit the decision maker to waive procedural requirements or observance of those procedural requirements which may be regarded as directory rather than mandatory; see Western Fish Products Ltd. v Penwith District Council (supra at 221) where such an explanation is given of Wells v Minister of Housing and Local Government, supra; Australian Broadcasting Corporation v Redmore [1989] HCA 15; (1989) 63 ALJR 306; Australian Capital Television Pty. Ltd. v Minister for Transport and Communications (1989) 86 ALR 119 at 146-147. There is a number of Australian cases where legislative requirements as to manner and form of dealings with land by public authorities have been treated as mandatory and there was no room for the application of principles of estoppel to found acquisition of interests in that land by persons dealing with the public authorities: Attorney-General v Municipal Council of Sydney (1919) 20 SR (NSW) 46; N.S.W. Trotting Club Ltd. v Glebe Municipal Council (supra); Pratten v Warringah Shire Council (1969) 2 NSWR 161 at 167-168. In the United States, the distinction between the mandatory and the directory or "procedural" is recognised, although perhaps applied with more reserve; see Molton Allen & Williams Inc. v Harris 613 F 2d 1176 at 1178-1179 (1980); Schweiker v Hansen [1981] USSC 111; 450 US 785 at 787-790, which is criticised for its caution by Professor Davis in his "Administrative Law Treatise", 2nd Ed., 1983, para 20.5.
22. Here again, it will be observed, what is found is not an exception to principles of ultra vires, in favour of an estoppel doctrine, but a process of construction of the statute in question. That process produces the result that the relevant decision is not ultra vires, without recourse to any doctrine of estoppel based upon representations which involved a relaxation of what in any event was a non-mandatory requirement. The present is not a case involving non-observance by the decision maker of any directory requirement.
23. Further, the alleged defect in question which is said to render the decision ultra vires may spring from what appears to be a lack of authority in the decision maker. What, in such a situation, is the role, if any, of apparent or ostensible authority? One bears in mind the significant element of notions of estoppel in that doctrine, as explained by Diplock L.J. in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd. (1964) 2 QB 480 at 503; "Bowstead on Agency", 15th Ed., 1985, pp 290-292. Further, some assistance by way of analogy may be derived from the rule in The Royal British Bank v Turquand [1856] EngR 470; (1856) 6 El. & Bl. 327; 119 ER 886, which is discussed in Australian Capital Television Pty. Ltd. v Minister for Transport & Communications (supra at 155-158), whereby a third party may be entitled to assume that a person with whom he is dealing has the authority of the company, when he might have such authority consistently with the company's public constituent documents; the third party is entitled to assume that the relevant procedures of "indoor management" for giving of the authority have been observed.
24. In Lever Finance Ltd. v Westminster (City) London Borough Council, supra
at 231, Lord Denning M.R. referred to an amendment to
the Town and Country
Planning Act 1968 (U.K.), which enabled a local authority to delegate to their
officers many of their functions
under the planning legislation. His Lordship
said:
"An applicant cannot himself know, ofHis Lordship also said (at 230):
course, whether such a delegation has
taken place. That is a matter for the
'indoor management' of the planning
authority. It depends on the internal
resolutions which they have made. Any
person dealing with them is entitled to
assume that all necessary resolutions
have been passed. Just as he can in the
case of a company: see Royal British
Bank v Turquand [1856] EngR 470; (1856) 6 E & B 327."
"There are many matters which public25. Speaking of that decision, Sir William Wade (in his "Administrative Law", 6th Ed., 1988, at p 384) has said that it sacrificed the public interest since the court deprived the responsible authority of the powers of control which the statute had assigned to it and it only, whereas the courts normally were careful to prevent any legal doctrines from impeding the free exercise of statutory discretion in the public interest by the proper body. In Western Fish Products Ltd. v Penwith District Council, supra, it was said by a differently constituted Court of Appeal that not every representation made by a planning officer "within his ostensible authority" would bind the planning authority which employed him and that there must be some evidence "justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority, so that the holding of an office, however senior, could not be enough by itself". The position in the United Kingdom is further discussed by Mr. Fazal in his article "Reliability of Official Acts and Advice", (1972) Public Law 43.
authorities can now delegate to their
officers. If an officer, acting within
the scope of his ostensible authority,
makes a representation on which another
acts, then a public authority may be
bound by it, just as much as a private
concern would be."
26. In the United States, there is a considerable body of authority against reliance, by persons dealing with the United States Government, upon any principles of apparent authority going beyond the actual authority of the officers concerned; see Mr. D.K. Thompson's article, "Equitable Estoppel of the Government" supra at 560-563; cf. Broad Avenue Laundry & Tailoring v United States 681 F 2d 746 at 747-748 (1982).
27. It remains to be seen whether there develops in this country any exception or qualification to the ultra vires doctrine which relies upon principles of ostensible authority and presumptions of regularity drawn from the law of agency in private law and from company law. Some limited assistance is given by the provisions dealing with delegation in the Acts Interpretation Act 1901, ss. 34AA, 34AB, 34A.
28. Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law. It would, in any event, have no application to the present case.
29. I should add that there may be, in the United States, some scope for raising estoppels by representation against the Government where the officers involved have engaged in "affirmative misconduct". The existence of such a doctrine was left open by the Supreme Court in United States Immigration and Naturalization Service v Hibi [1973] USSC 251; 414 US 5 at 8 (1973), but speaking of decisions in the lower courts, Mr. D.K. Thompson has said that "predictable energetic debates over the significance of 'affirmative' and the meaning of 'misconduct' have arisen, with generally unilluminating results" ("Equitable Estoppel of the Government", supra at 559). No reliance was placed upon that doctrine on this appeal.
30. In Robertson v Minister of Pensions (1949) 1 KB 227 at 231, Denning J. said "The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been exploded". It would follow from what I have said that this proposition is too widely expressed, certainly as regards the exercise of statutory discretion and the performance of statutory duty. However, the dispute before Denning J. concerned the exercise of authority reposed in the Minister of Pensions by Royal Warrant dated 12 April 1946 (Cmd. 6799), that is to say, a prerogative instrument, not delegated legislation; see Halsburys "Laws of England" 4th Ed, Vol. 8, page 670. Statute (the Pensions Appeal Tribunals Act 1943 (UK), ss. 1, 6) conferred a right of appeal to the Tribunal against rejection by the Minister of a claim such as that made by Colonel Robertson, with an appeal for error of law to a judge of the High Court nominated by the Lord Chancellor; see Polden "The Uses of Power: Mr Justice Denning and the Pensions Appeal Tribunals" (1988) Denning Law Journal 97. A representation made by the War Office, rather than the Minister, that the plaintiff's injury was accepted as attributable to his military service, was held to bind the Minister for the purposes of the Royal Warrant. Denning J. held (at 232) that the "function of the Minister of Pensions is to administer the Royal Warrant issued by the Crown, and he must so administer it as to honour all assurances given by or on behalf of the Crown". That appears to be a conclusion that proceeds from a view of the operation of the delegation of authority to the Minister by the particular Royal Warrant. In any event, in my view, despite the uses to which it has been put from time to time, Robertson's Case is not concerned with statutory duties or discretions.
31. I should also say that in my respectful view Lee J. spoke too widely when in Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681 at 703, he said that estoppel by representation is available where the words or conduct of the decision maker involved a representation that the duty had been performed or the discretion exercised. As I see it, if the decision maker were estopped from resiling from a single exercise of his discretion, then the nature of the discretionary power (being exercisable from time to time) would be stifled.
32. But what has been said above as to the role of estoppel in public law requires some qualifications in a particular class of case (of which it should be said at the outset of this section of these reasons, the present case is not one). In the exercise of powers derived from statute, a public authority may enter contracts or transfer property and will, in general, be subject to the ordinary private law rules dealing with contract, tort and property. In Australia, there is a consistent legal tradition to that effect, commencing with the entrepreneurial activities of the colonial governments. The consequences in public administration of those activities is one of the themes of Professor Finn's work, "Law and Government in Colonial Australia". After federation, those consequences further were manifested in the provisions of Part IX of the Judiciary Act 1903, including ss. 56 and 64. The subject is most recently discussed by Mr. Dennis Rose in his Paper, "The Government and Contract" in Finn Ed. "Essays on Contract", 1987. The limits that must be placed upon the effectiveness of contracts entered into by the donees of statutory discretionary powers, so that the contractual undertakings do not fetter the future exercise of that discretion, are discussed by Mason J. in Ansett Transport Industries (Operations) Pty. Ltd. v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 73-77; see also at 113-114 per Aickin J.
33. What is the position as regards estoppel where there is no question of illegality or ultra vires and the subject matter of the dealing would ordinarily be covered by private law? There is a number of cases where the dealings of public bodies with outsiders have attracted the operation of principles of estoppel and proprietary estoppel. Well known examples are A. Roberts & Co. Ltd. v Leicestershire County Council (1961) Ch 555; Crabb v Arun District Council (1976) Ch 179 and Attorney-General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd. (1987) 1 AC 114.
34. In the United States, a distinction has been drawn expressed in terms of
the "proprietary" as opposed to the "governmental" capacities
of public
bodies. The result is that if the public body is acting in its proprietary
capacity, and if its representative has been
acting within the scope of his
authority, then an equitable estoppel may arise: United States v
Georgia-Pacific Company [1970] USCA9 18; 421 F 2d 92 at 100-101 (1970); Air-Sea Brokers Inc. v
United States 596 F 2d 1008 (1979). Recent decisions in the Courts of Appeals
are divided on the question of whether such a distinction may still be drawn
after
the Supreme Court decision in Heckler v Community Health Services of
Crawford County Inc. (supra). The Eleventh Circuit and the
Federal Circuit
have continued to apply the distinction and to allow estoppels (see Federal
Deposit Insurance Corporation v Harrison
[1984] USCA11 945; 735 F 2d 408 at 411 (1984), USA
Petroleum Corp. v The United States [1987] USCAFED 343; 821 F 2d 622 at 625-7 (1987)) whilst the
First Circuit has taken the contrary position (see Phelps v Federal Emergency
Management Agency (supra);
Federal Deposit Insurance Corp. v Roldan Fouseca
[1986] USCA2 588; 795 F 2d 1102 at 1108 (1986)). The planning or policy level of decision
making wherein statutory discretions are exercised has, in my view a different
character or quality to what one might call the operational decisions which
implement decisions made in exercise of that policy;
cf. the distinction
drawn by Lord Wilberforce (albeit in a different context) in Anns v Merton
London Borough Council [1977] UKHL 4; (1978) AC 728 at 754. Where the public authority makes
representations in the course of implementation of a decision arrived at by
the exercise
of its discretion, then usually there will not be an objection to
the application of a private law doctrine of promissory estoppel.
It must,
however, be recognised that it may be difficult, in a given case, to draw a
line between that which involves discretion
and that which is merely
"operational". As Lord Wilberforce said in the passage referred to above:
"Many statutes also prescribe or at leastIn my view, the same may be said of the super-imposition of the operation of the doctrines of promissory estoppel.
presuppose the practical execution of
policy decisions: a convenient
description of this is to say that in
addition to the area of policy or
discretion, there is an operational area.
Although this distinction between the
policy area and the operational area is
convenient, and illuminating, it is
probably a distinction of degree; many
'operational' powers or duties have in
them some element of 'discretion'. It
can safely be said that the more
'operational' a power or duty may be, the
easier it is to superimpose upon it a
common law duty of care."
35. The distinction between merely operational decisions and those decisions which are the object of the statutory discretion (i.e. at the "policy" level) may be illustrated by reference to two recent Victorian cases. In Verwayen v The Commonwealth (No. 2) (1989) VR 712, the Full Court held the Commonwealth estopped from resiling from its promise not to plead that the appellant's claim in tort was statute barred. The Court applied Waltons Stores (Interstate) Ltd. v Maher [1988] HCA 7; (1988) 164 CLR 387. The promise by the Commonwealth did not require the exercise of any statutory discretion, and, with respect, was properly treated as a case to be determined according to private law rules, including equitable or promissory estoppel, reinforced by s. 64 of the Judiciary Act 1903.
36. The second case, Waverley Transit Pty. Ltd. v Metropolitan Transit
Authority (Supreme Court of Victoria, 2/6/88, unrep.) appears
to pose greater
difficulties. The Metropolitan Transit Authority ("M.T.A.") was vested with
authority under the Transport Act 1983 (Vic.) "to arrange with the State
Transport Authority, transport operators or other persons or bodies for the
provision of transport
services and facilities": s. 16 (2). In exercising
its powers, the M.T.A. entered into a number of "short-term contracts" with
private bus operators, including
the plaintiff. The plaintiff contended that
officers of M.T.A. induced or encouraged the plaintiff to acquire another bus
company
and to upgrade the latter company's plant and equipment upon the
implied promise that the plaintiff's "short-term contract" would
be renewed.
O'Bryan J., relying upon Waltons Stores (Interstate) Ltd. v Maher, supra,
upheld the plaintiff's contention and ordered,
inter alia, that the
"short-term contract" be renewed. I say nothing as to whether the facts of
this case presented the requisite
inducement or encouragement of an
expectation or assumption, necessary to give rise to an estoppel, or
alternatively a lying by with
knowledge of the other party's reliance. The
difficulty which I perceive, with respect, in applying Waltons Stores
(Interstate)
Ltd. v Maher, supra, to these facts, is that decisions as to
awarding and renewing contracts to private bus operators lay at the
heart of
the M.T.A.'s discretionary powers under the Transport Act 1983 (Vic.). These
were "planning" or "policy", rather than merely "operational", decisions.
Furthermore, the exercise of the M.T.A.'s
powers was expressed to be subject
to the direction of the Minister (s. 31) and it is not clear whether the
Minister also would be bound by the estoppel. In a case such as this, the
doctrine recognised in
Waltons Stores (Interstate) Ltd. v Maher, supra has no
application because of the need for the public authority to preserve its
statutory
discretion.
Estoppel And Detriment
37. An issue which arose in argument on this appeal was whether, on the assumption that an estoppel could be raised against the donee of a statutory discretion, it is essential for the party seeking to raise the estoppel to have suffered detriment by his reliance on the expectations generated by the representor.
38. The judgments in Waltons Stores (Interstate) Ltd. v Maher, supra, stress the necessity for the representee asserting the estoppel to have so acted upon the faith of the representation that this will operate to his detriment if the estoppel is not enforced; see per Mason C.J. and Wilson J. at 404, per Brennan J. at 429, per Deane J. at 443, per Gaudron J. at 458. This is how that decision was understood and applied by Tadgell J. in Collin v Holden (1989) VR 510. The essential point is that in several judgments which have been much relied upon in the recent Australian decisions, Dixon J. identified the object and operation of estoppel in this field as being to prevent an unjust departure by the representor from an assumption adopted or relied upon by the representee as the basis of some act or omission or other change of position which, if the assumption is not adhered to, then would operate to the detriment of the representee; see Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 at 547; Grundt v Great Boulder Pty. Gold Mines Ltd. [1937] HCA 58; (1937) 59 CLR 641 at 674-675. It is not simply a matter of identifying some detriment that will be sustained if the representation is not fulfilled; that would be to enforce, without more, something akin to a gratuitous promise. There must have been reliance upon the representation.
39. There will remain room for differing views as to what suffices to constitute "reliance" and "detriment". An example is provided by the judgments in the Supreme Court of South Australia in Je Maintiendrai Pty. Ltd. v Quaglia (1980) 26 SASR 101 (which is the subject of a note by Professor Seddon (1982) 56 ALJR 484) and by what was held by Mason C.J. on the one hand, and by Deane and Dawson JJ. on the other, in Foran v Wight (15/11/89, unrep., pp 28-29, 58, 80 respectively of the print). The position in England may be otherwise; it seems to be enough there that the representee acts on the faith of the assurance in such circumstances that it would be inequitable for the representor to go back on the representation; see Brikom Investments Ltd. v Carr (1979) QB 467 at 482; Greasley v Cooke (1980) 3 All ER 710 at 712-713, Amalgamated Investment & Property Co. Ltd. (In Liquidation) v Texas Commerce International Bank Ltd. (1981) 1 All ER 923 at 936.
40. In public law, the position has been taken both in England and in the United States that it is necessary for the representee to show what one might call detrimental reliance. That was the basis of the decision of the Supreme Court in Heckler v Community Health Services of Crawford County Inc. [1984] USSC 103; 467 US 51 (1984) and of the English Court of Appeal in Western Fish Products Ltd. v Penwith District Council (1981) 2 All ER 204 at 217; see also Norfolk County Council v Secretary of State for the Environment (1973) 1 WLR 1400 at 1405. That being so, and given the position in private law in Australia, the better view would have to be that detrimental reliance in the sense described above was essential also in public law. But, as I have indicated, there will always be room for debate as to the content of the term "detriment" and the term "reliance".
41. The competing view would be that expressed by Berger J. in Re Smith and The Queen (1974) 22 CCC (2d) 268 at 272, to the effect that the citizen is entitled to expect public authorities and those they employ to deal with the public will keep their word and act within their authority, so that detrimental reliance is not necessary as it would be in private dealings; see Mr. P. McDonald, "Contradictory Government in Action: Estoppel of Statutory Authorities", supra at 191-192.
42. Assuming that (i) the doctrine of promissory estoppel were available in
the present case, and (ii) that it is an essential ingredient
in such an
estoppel for the party relying upon it to show that he had so changed his
position on the faith of the representation,
that he would suffer detriment if
the estoppel were not enforced, and that (iii) there was a representation that
if the respondent
gave no further cause for his deportation, he would be free
to continue his life in Australia, nevertheless even then I would not
be
persuaded that the respondent had changed his position in any relevant sense
upon the faith of that representation. How can the
respondent point to any
change of position on his part which will operate to his detriment if the
appellant's deportation order of
28 January 1988 stands? Is the respondent to
be heard to say that but for the representation upon which he seeks to rely he
would
have given further cause for his deportation or otherwise acted in a
reprehensible manner? Counsel for the respondent pointed only
to alleged
"emotional or psychological" detriment which the respondent would suffer if
the deportation order were to be implemented,
but that, in my view, could not
suffice. It would not flow from any change of position which occurred on the
faith of the alleged
representation before the making of the second
deportation order.
Was the Minister Functus Officio?
43. Counsel for the respondent argued that the decision to make the second deportation order was one which the appellant could not properly make in the absence of any change in relevant circumstances. It was contended for the respondent that this decision was outside the appellant's jurisdiction (s. 5 (1) (c) of the ADJR Act), an improper exercise of his powers (ss. 5 (1) (e) and 5 (2) of the ADJR Act), erroneous in law (s. 5 (1) (f) of the ADJR Act) and a breach of the rules of natural justice (s. 5 (1) (a) of the ADJR Act). It was argued that judicial review on those grounds would be attracted because the power to deport under s. 12 of the Migration Act is of such a serious nature affecting the life of a person and based on clear criteria, that, once exercised in favour of a person and notified to him on the basis that it is final and conclusive, it should not be exercised against him at a later stage on the same facts. It was therefore argued that the appellant breached a duty to act consistently; and that, the facts upon which the first decision to deport not having changed, the appellant was functus officio in the sense that the appellant's power to make a deportation order on the same facts was spent. The result would be that the second deportation order was made ultra vires.
44. In my view, these submissions cannot be sustained. It is true that the Minister's discretion under s. 12 of the Migration Act is not expressed to be "absolute", in contrast for example to the powers under s. 7 of that Act in respect of temporary entry permits. Indeed, s. 12 lays down several pre-conditions to the exercise of the discretion vested in the Minister. But once those conditions are satisfied, and there is no argument to the contrary in this case, the section does not purport to constrain the way in which the discretion is exercised.
45. In the present case, there is nothing in the Migration Act which suggests
an intention contrary to the presumption embodied in s. 33 (1) of the Acts
Interpretation Act 1901, to which I have already referred. Accordingly, the
power to make a deportation order is exercisable from time to time, so as to
revoke or revive a deportation order previously made, whether on the same
facts as before or otherwise. Even if the facts upon which
the original
decision was based remain constant, it may be the policy of the donee of the
power which changes and thus requires a
reconsideration of decisions
previously made: cf. Laker Airways Ltd. v Department of Trade (1977) QB 643
at 707, 708-709, 728. The significance of a change in either the facts or in
ministerial policy would go merely to the merits of
the decision upon which
the Court is not entitled to decide. The appellant could not therefore have
been functus officio, and an
estoppel could not be allowed which would have
the effect of stifling the future exercise of the statutory discretion:
Southend-on-Sea
Corporation v Hodgson (Wickford) Ltd. (1962) 1 QB 416;
Rootkin v Kent County Council (supra at 1195). These principles were
affirmed in the application of the Migration Act in Re Chan and Minister for
Immigration and Ethnic Affairs (1977) 17 ALR 432 per Smithers J. at 441-442
and in Dallikavak v Minister of State for Immigration and Ethnic Affairs
(1985) 9 FCR 98 per Northrop and Pincus JJ. at 103-104. I would respectfully
agree with what was there said, that if a deportation order is revoked,
there
is power to make another deportation order in reliance upon the same facts as
those upon which the previous deportation order
was based.
Improper Purpose
46. In some extreme cases, a multiplicity of needless actions may disclose an improper purpose (s. 5 (2) (c)) and thus constitute an improper exercise of the power (s. 5 (1) (e)): per Beaumont J. in Zoeller v Attorney-General (Cth.) (1989) 16 FCR 153 at 161-162; 76 ALR 267 at 275; cf. Wiest v Director of Public Prosecutions (1988) 86 ALR 464 at 511. The present case, however, in which there is a revival of a decision previously revoked, falls well short of the degree of repetitious administrative procedures which would support a contention that the discretion reposed in the decision maker by an Act of the Commonwealth was being exercised for an improper purpose.
47. It follows from what has been said so far that in my view the
respondent's contentions based on estoppel, lack of jurisdiction,
improper
purpose and error of law must be rejected.
Issue Estoppel
48. The respondent further submitted that there was an issue estoppel based on the recommendation of the Administrative Appeals Tribunal of 6 September 1985 that the initial Deportation Order be revoked, together with the Minister's subsequent decision on 21 November 1985 to revoke the Order and his decision on 6 November 1986 not to disturb the status quo despite the views of the New South Wales Court of Criminal Appeal.
49. The question whether issue estoppel applies to decisions of the
Administrative Appeals Tribunal has not been conclusively settled.
In
Commonwealth v Sciacca (1988) 78 ALR 279 at 283-284, the Full Court of this
Court indicated that the informal and non-technical nature of the procedure
permitted by s. 33 (1) of the Administrative Appeals Tribunal Act 1975 pointed
away from the applicability of issue estoppel to its determinations; see also
Wiest v Director of Public Prosecutions (supra
at 508-510); Minister for
Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359-60, 363. In
any event, the doctrine of issue estoppel is clearly inappropriate in the
present case in which no dispute arises
as to the determination previously
made by the Administrative Appeals Tribunal.
"Unfairness"
50. The respondent further submitted that, independently of any breach of the rules of natural justice, the second deportation order should be set aside on the basis of procedural "unfairness". The circumstances said to give rise to the unfairness are essentially the same as those raised on the basis of estoppel, and focus on the inconsistency of the second deportation order with the previous revocation of the first deportation order together with the letter of 17 December 1985.
51. Such a complaint, if made out, would fall within the catch-all provision of s. 5 (2) (j) of the ADJR Act, as applying to a decision that was "otherwise contrary to law". In Sunshine Coast Broadcasters Ltd. v Duncan (1988) 83 ALR 121, Pincus J. held that an administrative decision was vitiated by inconsistency in that the decision-maker had applied against one applicant a guideline which was equally applicable to competing applicants against whom it was not applied, without any reason for that discrimination. As Pincus J. pointed out (at 130), the complaint in the case before him related to the treatment of one applicant as compared with that of another; it was not concerned with a comparison between current treatment and former treatment. The present case is of the latter kind. It thus calls for consideration of concepts of fairness other than as they were considered by Pincus J. in Sunshine Coast Broadcasters Ltd. v Duncan, supra, (and also other than as considered by Lord Scarman in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; (1982) AC 617 at 651).
52. In the context of inconsistent treatment of the one applicant at
different points in time, there appear to have been two concepts
of"unfairness" which have moved the minds of some English judges as
constituting grounds of judicial review. Both concepts appears
to involve
unfairness in a substantive rather than procedural sense. The High Court has
treated the rules of natural justice as
concerned with "procedural
unfairness", as is apparent from Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563,
584-585, 600-601, 609, 632. First, in In re Preston [1984] UKHL 5; (1985) AC 835 at 866-867,
Lord Templeman said:
"In principle I see no reason why theCf. dicta of Lord Scarman at 852. But wherein lies the supposed equivalence between the exercise of a statutory discretion and the performance of a contract or the making good of representations? What I have said earlier in dealing with the special position of the donees of statutory discretionary powers in the context of the doctrine of equitable or promissory estoppel indicates that the analogy should not be accepted.
appellant should not be entitled to
judicial review of a decision taken by
the commissioners if that decision is
unfair to the appellant because the
conduct of the commissioners is
equivalent to a breach of contract or a
breach of representation."
53. Secondly, there appears to be a concept of unfairness in a substantive,
rather than a procedural, sense, to be arrived at by
some process of "judicial
balancing" between private and public interests. The principal proponent of
this doctrine has been Lord
Denning M.R., who said in Laker Airways Ltd. v
Department of Trade (supra at 707):
"The underlying principle is that theThis view enjoys some academic support: see Craig, "Administrative Law", pp 572-581; Craig, "Representations By Public Bodies", (1977) 93 LQR 398. But there are two fatal objections to the suggested "judicial balancing" of interests. First, the question of where the balance lies between competing public and private interests in the exercise of a statutory discretion goes to the merits of the case, and is thus one for the decision maker, not the courts, to resolve. Secondly, a conclusion that a representation or decision is ultra vires ordinarily will preclude its effectiveness. An ultra vires representation is not a mere factor in favour of which the scales of judicial balancing might be allowed to swing, but peremptorily forecloses such deliberation. If the views of Lord Denning M.R. were adopted, one would be entitled to wonder why such judicial balancing might not replace the doctrine of ultra vires altogether: see Cane, "An Introduction to Administrative Law", pp 234-236. Accordingly, in my view, "unfairness" in this second sense is not a ground of judicial review.
Crown cannot be estopped from exercising
its powers, whether given in a statute or
by common law, when it is doing so in the
proper exercise of its duty to act for
the public good, even though this may
work some injustice or unfairness to a
private individual. . . . It can,
however, be estopped when it is not
properly exercising its powers, but is
misusing them; and it does misuse them
if it exercises them in circumstances
which work injustice or unfairness to the
individual without any contervailing
benefit for the public: see Robertson v
Minister of Pensions (1949) 1 KB 227;
Reg. v Liverpool Corporation, Ex parte
Liverpool Taxi Fleet Operators'
Association (1972) 2 QB 299 and H.T.V.
Ltd. v Price Commission (1976) ICR 170,
185-186."
54. Before I pass from this substantive sense of unfairness, there are two further cases which should be considered. In H.T.V. Ltd. v Price Commission (1976) ICR 170, the English Court of Appeal held that the Price Commission was not entitled to issue a new ruling contradicting its previous statement that the tax payments were a permissible item of total costs for the purpose of calculating increases of price by television programme contractors. One basis for the decision was the unfairness, in the sense of inconsistency of treatment, by the Price Commission in purporting to reverse a previous interpretation of the relevant legislation: per Lord Denning M.R. at 185, per Scarman L.J. at 192, per Goff L.J. at 195. But there was a second basis for the decision, viz. that the Price Commission had made an error of law in adopting the later interpretation of the relevant statute: per Lord Denning M.R. at 186, Scarman L.J. at 189-191, per Goff L.J. at 193-194. The error of law alone would suffice as a ground of judicial review, and thus renders the "unfairness" ground unnecessary for the decision. But one can go further. The existence of an error of law meant that the question whether the tax payments should be included in the calculation of total costs was not a discretionary matter; the Price Commission had to get that question right as a matter of law.
55. The second case which requires separate consideration is the decision of the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629 It was held that the Government of Hong Kong was bound by its published undertaking to interview each illegal immigrant and decide each case on the merits. The principle recognised by the Privy Council was that "a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty": at 638. Accordingly, the applicant should have been given an opportunity to state his case and the failure to ask him whether he wished to make representations why he should not be removed was a sufficient ground for setting aside the decision. Clearly then, the concept of fairness at stake in this case was procedural, and relates to the formulation of the content of the rules of natural justice. It has nothing to do with the kind of substantive unfairness and judicial balancing of private and public interests envisaged principally by Lord Denning, and I will return to consider the case in its proper context of natural justice.
56. I conclude, therefore, that "unfairness" in the senses discussed above
does not provide a ground of judicial review, and that
the "unfairness"
adverted to in the present case by counsel for the respondent adds nothing to
the unsuccessful arguments based on
estoppel.
Natural Justice
57. It is further alleged that a breach of the rules of natural justice occurred in connection with the making of the second decision to deport the respondent, within the meaning of s. 5 (1) (a) of the ADJR Act. Three grounds for a breach of the rules of natural justice were adduced: first, it is said that the appellant departed from his earlier decision to revoke the deportation order without giving the respondent an opportunity to be heard; secondly, that the appellant made a fresh decision on material questions of fact without giving the respondent an opportunity to be heard; and thirdly, that the appellant departed from the Criminal Deportation Policy announced on 4 May 1983, and the Transitional Policy announced on 28 March 1984, without giving the respondent an opportunity to be heard.
58. As I have already indicated, an officer of the appellant's department interviewed the respondent on 22 October 1987, informing him that further consideration was to be given to the question of his deportation, and inviting him to make written submissions on the assurance that such submissions would be considered by the Minister. That invitation is fatal to the first of the alleged grounds of a breach of the rules of natural justice, for plainly the respondent was given an opportunity to be heard.
59. The essence of the second ground is that in making the second deportation
order, the appellant relied on material from a source
other than the
respondent himself, without giving the respondent the opportunity to be heard
on that material. The material in question
consisted of two reports of parole
officers dated 24 September 1986 and 12 February 1987 and a report from the
Prison Medical Service
sent by the Secretary of the Parole Board of New South
Wales to an officer of the appellant's department under cover of a letter
dated 8 May 1987. That letter included the following passage:
"It is relevant to mention, that pursuantSection 45 of the Probation and Parole Act 1983 (NSW), before the repeal of that Act by s. 56 (1) of the Sentencing Act 1989 (NSW), provided as follows:
to Section 45 of the Probation and Parole
Act 1983 the parole officer's report of
the 24th September, 1986 was not provided
to the prisoner because of the Board's
concern for the writer.
It is stressed that in no circumstances
should this report be made available to
the prisoner.
Also, you will note that certain sections
of the report of 12th February, 1987 have
been deleted in accordance with Section
45 of the Act."
"45. Nothing in section 27 (3) or 40 (1) requires(The substance of that section is now embodied in s. 49 of the Sentencing Act 1989 (NSW).)
a prisoner to be provided with a copy of a
report or other document or any part
thereof, the provision of which to the
prisoner may, in the opinion of a judicial
member of the Board -
(a) adversely affect the security,
discipline or good order of a prison;
or
(b) endanger the prisoner or any other
person."
60. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J. said (at 587) in the context
of decisions to grant or refuse an entry permit under the Migration Act:
"In the ordinary course of granting orMason J. referred further to "the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it" (at 587). Cf. Gibbs C.J. at 569, Wilson J. at 602, Brennan J. at 629, Deane J. at 634.
refusing entry permits there is no
occasion for the principles of natural
justice to be called into play. The
applicant is entitled to support his
application by such information and
material as he thinks appropriate and he
cannot complain if the authorities reject
his application because they do not
accept, without further notice to him,
what he puts forward. But if in fact the
decision-maker intends to reject the
application by reference to some
consideration personal to the applicant
on the basis of information obtained from
another source which has not been dealt
with by the applicant in his application
there may be a case for saying that
procedural fairness requires that he be
given an opportunity of responding to the
matter: In re H.K. (An Infant)."
61. A Minute prepared by an officer of the appellant's department, dated 14 January 1988, discloses that the material obtained from the N.S.W. Parole Board was crucial to the appellant's decision to order the deportation of the respondent on 28 January 1988. Further, the notes of the interview with the respondent on 22 October 1987, prepared by an officer of the appellant's department, do not reveal that the matters addressed in the Parole Board's material were put to the respondent.
62. Counsel for the appellant submitted that the confidential nature of the documents, and the element of risk to the public interest in their disclosure, rendered it appropriate in the circumstances not to make the material available to the respondent. Counsel for the appellant accepted that any difficulty as to preservation of confidentiality might have been met by making the material available not to the respondent himself, but to legal representatives chosen by him. But counsel submitted that the duty to adopt this course would arise only after the respondent had decided to make further submissions.
63. This line of reasoning is plainly inconsistent with what was said by the High Court in Kioa v West, supra, in the passages to which I have referred. The High Court did not regard the duty to observe procedural fairness as discharged in the situation where the decision turns on material obtained from another source, by a general and unfocused invitation to make submissions; rather, the specific grounds on which the decision turns should be put to the individual concerned, so that the latter's submissions may be directed to the critical issue or issues. In the present case, procedural fairness requires that the nature of the allegations raised in the Parole Board material be disclosed to the respondent or his legal representatives, so that advice may be given to the respondent on whether to accept the appellant's invitation to make written submissions, and if so, how those submissions should be framed. The appellant, however, need not disclose the identity of the informant if he believes such disclosure might put the informant in peril: R. v Gaming Board for Great Britain, ex parte Benaim (1970) 2 QB 417 at 431. Accordingly, I hold that there was a breach of the rules of natural justice in the making of the second deportation order, and the appellant's decision was properly set aside on that ground.
64. The third ground for alleging a breach of the rules of natural justice
was based on what were submitted to be the legitimate
expectations of the
respondent arising out of the Criminal Deportation Policy announced by the
Minister on 4 May 1983 and the Transitional
Policy announced by the Minister
on 28 March 1984. Paragraph 4 of the former Policy provides as follows:
"It is the policy of the AustralianThe Transitional Policy further provided:
Government that recommendations of the
Administrative Appeals Tribunal should be
overturned by the Minister only in
exceptional circumstances and only when
strong evidence can be produced to
justify his decision. Furthermore, it is
the policy of the Government that, when
the Minister decides to deport a person
contrary to a recommendation of the
Tribunal, the Minister will table in the
Parliament at the first opportunity a
statement of his/her reasons for doing so."
"Non-citizens convicted of offences65. There is an ambiguity in the term "legitimate expectation", which has been employed in two broad ways in the context of formulating the content of the rules of natural justice; Kioa v West (supra) per Gibbs C.J. at 563, 567, per Mason J. at 583, per Brennan J. at 616-627, per Deane J. at 632. On the one hand, it has been used to mean that an individual can legitimately expect a hearing because of some undertaking, policy guideline or course of conducting hearings by the decision maker to the effect that such a hearing will be given: see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu, supra; Century Metals and Mining NL v Yeomans (Full Court of the Federal Court, 25/7/89 unrep.). On the other hand, the term has been used to refer to a benefit which, though not protected by a right in the strict sense, might legitimately be expected to be conferred by the decision maker: see, for example, Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 508-509 per Aickin J. I would also place in the latter category the legitimate expectation considered by the Full Court of this Court in Cole v Cunningham (1983) 81 FLR 158 at 167. In that case, the expected benefit (viz. to be given an unblemished record upon resignation from employment) had been generated by a representation but, unlike the representation in Ng's Case, it promised a substantive benefit, rather than a particular hearing procedure.
committed prior to the date of
proclamation of the amended Act and who,
although liable for deportation under the
amended Act are not liable under present
legislation (should not be deported);
but excluding cases which come to notice
involving very serious crimes and/or
where special circumstances exist which
warrant (the Minister's) personal
consideration."
66. The ambiguity in the term "legitimate expectation" was also explained by
Lord Diplock in C.C.S.U. v Minister for the Civil Service
(1985) AC 374 at
408, in saying that it arose where a person was deprived of some benefit or
advantage which:
"either (i) he had in the past beenBoth senses of the term, it will be seen, are relevant only in deciding whether and to what extent, the applicant is entitled to a hearing.
permitted by the decision-maker to enjoy
and which he can legitimately expect to
be permitted to continue to do until
there has been communicated to him some
rational grounds for withdrawing it on
which he has been given an opportunity to
comment; or (ii) he has received
assurance from the decision-maker (that
they) will not be withdrawn without
giving him first an opportunity of
advancing reasons for contending that
they should not be withdrawn."
67. The present case concerns a legitimate expectation to a benefit, rather than to a hearing. Although the respondent's submissions are based on a policy announced by the decision maker, that policy does not promise, or expressly encourage, the expectation of, a right to be heard. Rather, the policy elevates what might otherwise be mere hope that the discretionary power would be favourably exercised, into an expectation that the individual concerned will be entitled to the benefit of the decision previously made by the Administrative Appeals Tribunal ("the AAT") unless exceptional circumstances arise. The "amnesty" considered by the High Court in Salemi v MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396 presented a similar case: cf. per Mason J. in Kioa v West (supra at 583). The question which thus arises is whether the respondent's interest in not being deported was sufficiently strengthened by the appellant's announcements as to reversing recommendations of the AAT, that the duty to obey the rules of natural justice was not discharged by the mere invitation to make written submissions.
68. The effect of para. 4 of the Criminal Deportation Policy announced on 4
May 1983 on the content of the rules of natural justice
was considered by the
Full Court of this Court in Haoucher v Minister of State for Immigration and
Ethnic Affairs (1988) 83 ALR 530; (an appeal to the High Court has been heard
and the decision is presently reserved). The Full Court held (Northrop and
Lee JJ,
Sheppard J. dissenting) that the Criminal Deportation Policy did not
give rise to a "legitimate expectation", such that the appellant
was entitled
to an opportunity to be heard before the Minister made a decision not to
accept the AAT's recommendation. Northrop and
Lee JJ both distinguished
Attorney-General of Hong Kong v Ng Yuen Shiu, supra on the basis that in that
case the stated policy promised
an opportunity to make representations. With
respect, that way of distinguishing Ng's Case, while correct, does not
conclude the
matter. Ng's Case was concerned with that sense of "legitimate
expectation" which refers to an expectation to be heard. But, as
I have said
in discussing the ambiguity latent in the term "legitimate expectations", the
term is used also to refer to the expectation
of a favourable exercise of the
relevant discretionary power. It is this sense to which Mason J. referred in
Kioa v West, supra
at 582-583 (cited by Sheppard J. in Haoucher's Case):
"It is a fundamental rule of the commonReference may also be made to Heatley v Tasmanian Racing and Gaming Commission (supra) per Aickin J. at 508-509 (with whom Stephen and Mason JJ agreed); F.A.I. Insurances Ltd. v Winneke [1982] HCA 26; (1982) 151 CLR 342, per Gibbs C.J. at 348, per Stephen J. at 351, Mason J. at 360-362, per Aickin J. at 376-377; and South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, per Deane J. at 417.
law doctrine of natural justice expressed
in traditional terms that, generally
speaking, when an order is made which
will deprive a person of some right or
interest or the legitimate expectation of
a benefit, he is entitled to know the
case sought to be made against him and to
be given an opportunity of replying to
it. . . . The reference to 'legitimate
expectation' makes it clear that the
doctrine applies in circumstances where
the order will not result in the
deprivation of a legal right or interest."
69. In Kioa v West (supra at 563), Gibbs C.J. approved a passage from Mason
J.'s judgment in F.A.I. Insurances Ltd. v Winneke (supra
at 360) which,
omitting citations, read:
"The fundamental rule is that a statutory70. In my view, the Criminal Deportation Policy gives rise to a legitimate expectation, in the sense just discussed, that a recommendation of the AAT will not be overturned unless there are exceptional circumstances. Such a legitimate expectation, while not giving rise to a duty that it be fulfilled, strengthens the content of the rules of natural justice with which the appellant must comply. Einfeld J. preferred the views of Sheppard J. but regarded himself as bound by the majority of the Full Court. However, in my view, the judgments of the majority in Haoucher's Case did not consider the sense of "legitimate expectation" which is crucial here and the reasoning is inconsistent with what was said by the High Court in Kioa v West, supra, Heatley's Case, supra and the F.A.I. Case, supra. This appeal should be decided conformably with the state of authority in the High Court. It is not necessary to decide whether a breach of the rules of natural justice would have occurred in the absence of the appellant's policy announcements, arising merely from the decision not to adopt the recommendation of the AAT (as to which see Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 46 ALR 123 at 130-131).
authority having power to affect the
rights of a person is bound to hear him
before exercising the power (Twist v.
Randwick Municipal Council; Heatley v.
Tasmanian Racing and Gaming Commission).
The application of the rules is not
limited to cases where the exercise of
the power affects rights in the strict
sense. It extends to the exercise of a
power which affects an interest or a
privilege (Banks v Transport Regulation
Board (Vict.)) or which deprives a person
of a 'legitimate expectation', to borrow
the expression of Lord Denning M.R. in
Schmidt v. Secretary of State for Home
Affairs, in circumstances where it would
not be fair to deprive him of that
expectation without a hearing. (Salemi v.
MacKellar (No. 2))."
(Emphasis supplied.)
71. In the present case, the respondent's legitimate expectation required that the matters on which the decision of the appellant turned should have been put to the respondent or his legal representatives, so as to give him the opportunity to address those matters. In failing to do so, the appellant breached the rules of natural justice, and the decision was liable to be set aside on that ground.
72. Counsel for the respondent further submitted that the legitimate expectations generated by the appellant's announcements of policy should be protected substantively, and not merely by strengthening the procedural protection afforded by the rules of natural justice. The upshot of this submission would be that the appellant was bound substantively to exercise his discretion as to the making of a deportation order in the particular way suggested by the announcements of policy. Support for that view may be drawn from an article by Forsyth, "The Provenance and Protection of Legitimate Expectations" (1988) CLJ 238 and from three recent English cases: R. v Secretary of State for the Home Department, ex parte Kahn [1984] EWCA Civ 8; (1984) 1 WLR 1337, R. v Secretary of State for the Home Department, ex parte Ruddock (1987) 2 All ER 518, and Oloniluyi v Secretary of State for the Home Department (1989) Imm. AR 135.
73. In ex parte Kahn, the Court of Appeal held that in reaching a decision on
a ground not included in criteria previously announced
in a letter to the
applicant, the Secretary of State acted unfairly and in disregard of the
applicant's legitimate expectations and
his decision would accordingly be
quashed. It is not clear what ground of judicial review was being invoked in
quashing that decision,
although it is implicit in what Parker L.J. says (at
1348) as to the effect of the order to quash the decision, that his Lordship
envisaged a breach of the rules of natural justice in that the applicant's
legitimate expectations operated only to strengthen his
right to be heard, and
not to bind the Home Secretary as to the substantive consideration of the
matter:
"This (i.e. quashing the decision of theOn that basis, the case does not advance the argument that legitimate expectations are entitled to substantive protection. Dunn L.J. held that the decision should be quashed on the basis of "unfairness" and "unreasonableness" in that the Home Secretary did not adhere to the previously announced criteria (at 1352). Although Dunn L.J. denies that the letter created an estoppel, this would seem to be the effect of his Lordship's reasoning, and the arguments against the operation of such an estoppel would be available in that the Home Secretary could not be permitted to fetter his discretion to vary the substantive criteria on which a decision would be reached. Watkins L.J., on the other hand, dissented on the basis that the letter did not in fact create the legitimate expectation contended for. In my view then, the only acceptable ground of review in this case was procedural unfairness in that a breach of the rules of natural justice occurred.
Secretary of State) will leave the
Secretary of State free either to proceed
on the basis of the letter (in which the
criteria were announced) or, if he
considers it desirable to operate the new
policy, to afford the applicant a full
opportunity to make representations why,
in his case, it should not be followed."
74. Ex parte Ruddock, supra, also concerned an alleged departure from
pre-announced substantive criteria for exercising a discretionary
power,
although the subject-matter of the decision (viz. the Home Secretary's
decision to sign a warrant to intercept telephone calls)
by its nature
precluded the right of an individual to be heard before the decision was made.
Taylor J. (at 531) recognised that the
concept of legitimate expectations had
usually been applied in formulating the content of the right to be heard, but
thought that
the concept could be deployed elsewhere:
"(I)n a case where ex hypothesi there isWith respect, the duty to exercise discretionary power on the merits of each case would seem to preclude the view that a prior announcement of substantive criteria on which the decision would be based could have binding force until such time as a different announcement is made. Indeed, Taylor J. expressly recognises that there may be reasons, such as national security, for departing from published criteria. The expectations of applicants as to the way in which a decision will be reached as a substantive, rather than a procedural matter, cannot derogate from the duty to retain the discretionary nature of the decision-making power.
no right to be heard, it may be thought
the more important to fair dealing that a
promise or undertaking given by a
minister as to how he will proceed should
be kept. Of course such promise or
undertaking must not conflict with his
statutory duty or his duty, as here, in
the exercise of a prerogative power. I
accept the submission of counsel for the
Secretary of State that the respondent
cannot fetter his discretion. By
declaring a policy he does not preclude
any possible need to change it. But then
if the practice has been to publish the
current policy, it would be incumbent on
him in dealing fairly to publish the new
policy, unless again that would conflict
with his duties."
75. In a third recent English case, Oloniluyi v Secretary of State for the Home Department, supra, the Court of Appeal treated failure to meet a legitimate expectation as a substantive defect in the decision making process. But, as appears from the judgment of Dillon L.J., it was accepted by the Crown that "as a matter of law estoppel may lie against the Crown" and his Lordship described as "substantially the same" the argument "under the label of estoppel" and the legitimate expectation argument.
76. I should add that in Regina v Secretary of State for the Home Department, Ex parte Mowla ("The Times", 9 January 1990) Roch J. appears to have treated denial of a legitimate expectation as going to a matter of procedure, the applicant having been denied "the opportunity to put his side of (the) case".
77. I reject the view that a legitimate expectation to a favourable exercise
of a discretion is entitled to substantive, rather than
procedural, protection
as a matter of law.
Failure to take relevant considerations into account
78. His Honour at first instance held that the second decision to deport the respondent was an improper exercise of power (s. 5 (1) (e) of the ADJR Act) because of a failure to take relevant considerations into account (s. 5 (2) (b) of the ADJR Act). In his Honour's view, those considerations were (i) the likelihood of recidivism and (ii) the mental or other health reasons for deportation.
79. There is ample evidence in the departmental Minute to the appellant of 14
January 1988 that both these matters were taken into
account. Therefore, it
is unnecessary to decide whether these considerations, while not irrelevant,
were such that the appellant
was bound to take them into account. This is
something which the respondent would have to have shown if he were to succeed
on this
ground of review: see Minister for Aboriginal Affairs v Peko-Wallsend
Ltd. [1986] HCA 40; (1986) 162 CLR 24, per Mason J. at 39; Muslowie v Minister for
Immigration and Ethnic Affairs (1986) 13 FCR 179 at 188 per Beaumont J.
Conclusion
80. Accordingly, the decision of Einfeld J. should be upheld, but on the sole ground of a denial of natural justice in the particular sense I have described. I agree with what is said by Neaves J. and Ryan J. in their judgments as to the orders which should be made to dispose of the appeal. I agree with what Neaves J. proposes as to costs.
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