Treaties and Legitimate Expectations – The Rise and Fall of Teoh in Australia

Abstract

In an earlier edition of this journal, Sanjay Patel argued that unincorporated treaties could and should provide the foundation for legitimate expectations by individuals seeking judicial review of administrative action. This suggestion drew support from the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (1995) 183 CLR 273. That case broke new ground by holding that an unincorporated treaty could found a legitimate expectation that administrative officials would normally act in accordance with the terms of the treaty. Teoh’s case appeared to signal a greater recourse to both legitimate expectations and treaties in administrative decision making but was soon overtaken in Australian by wider constitutional issues in Minister for Immigration and Ethnic Affairs; Ex parte Lam [2003] HCA 6 (2003) 214 CLR 1. In that case the High Court of Australia strongly doubted both Teoh and the doctrine of legitimate expectations that underpinned it, though it seemed mainly concerned to ward off any recourse to the substantive variant of the legitimate expectation that was accepted in R v North and East Devon Health Authority; Ex parte Coughlan [2001] 1 QB 213. Teoh was thus left in limbo in its country of origin, yet it continues to attract interest in other jurisdictions.This article examines the Australian response to Teoh and explains why the case waned in Australia. It will be argued that the government and judicial responses to Teoh are contradictory and have failed to confront the central questions posed by Teoh. The article also explains why any substantive version of legitimate expectations remains beyond the reach of Australian courts. Legitimate expectations of both the procedural and substantive kind have become casualties of a much wider constitutional battle. The courts appear to have won the day and secured the central elements of their supervisory role but they have ceded territory in areas such as legitimate expectations.