Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic

[1990] FCA 22
(1990) 92 ALR 93
(1990) 21 FCR 193

(Judgment by: Gummow J)

Minister for Immigration, Local Government and Ethnic Affairs
v.Kurtovic

Court:
Federal Court of Australia

Judges: Neaves J
Ryan J

Gummow J

Hearing date: 7 February 1989
Judgment date: 7 February 1990

Sydney


Judgment by:
Gummow 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 (Cth) (the ADJR Act). His Honour's judgment is reported in (1989) 86 ALR 99.

The facts

On 16 December 1982, the respondent, a non-citizen who had been present in Australia for less than 10 years, shot and killed his parents-in-law. Following conviction in New South Wales for manslaughter in 1983 (and sentencing to 10 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 (Cth) (the Migration Act). Section 12 provides as follows:


12 Where --

(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 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 the person.

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.

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 oral warning administered to you today in relation to your conviction for manslaughter at Sydney District Court on 28 July 1983 which rendered you liable to deportation from Australia pursuant to s 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.

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.

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.

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

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.

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".

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) 46 ALR 1 ; 152 CLR 406 at 435-7.

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.

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.

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 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": 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) 81 ALR 687 at 695. But upon what basis does this proposition rest, and are there exceptions or qualifications to it?

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) 467 US 51 at 60 the court said:


When the government is unable to enforce 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.

Professor Koch (in his treatise Administrative Law and Practice, 1984 para 10.57) has criticised 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) 243 US 389 at 409. 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.


Several justifications have been offered 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) 11 US 366 at 369 Fear of uncontrollable liability and crippling losses to the public treasury have also played a role in sustaining the rule. See, eg Floyd Acceptances (1869) 74 US 666 at 681. 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.

Much to the same effect are observations by the Court of Appeals for the First Circuit in Phelps v Federal Emergency Management Agency (1986) 785 F 2d 13 at 16-17; see also Berger "Estoppel against the Government" (1953-54) 21 Univ of Chicago L Rev 680 at 686.

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 LJ 160 at 161:


No estoppel can arise out of the acts of 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.

The 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 R [1950] 2 DLR 225 at 232.

The same strand of thought is apparent from the remarks of Lord Greene MR 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 153-4. In Hulkin's case, the issue was whether the Defence (General) Regulations 1939 (UK) 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 MR said of that submission:


Accepting the view which Mr Bailleu (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.

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 New South Wales 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 Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423-5. Of the lastmentioned decision, Sir Alexander Turner The Law Relating to Estoppel by Representation, 3rd ed, 1977, p 150, said:


It has been authoritatively laid down (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.

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.

Estoppel and ultra vires

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 New South Wales Trotting Club Ltd v Glebe Municipal Council, supra. Section 252 of the Local Government Act 1919 (NSW) 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 CJ 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 CJ 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.

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, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) 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 Corp (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 Westminster Corp [1904] 2 KB 109 at 120, and Re 56 Denton Road, Twickenham [1953] Ch 51 at 56-7; that is how Eveleigh LJ saw the matter when, in Rootkin v Kent County Council [1981] 2 All ER 227 at 234-5, he discussed Livingstone's case.

I further consider this aspect with reference to s 12 of the Migration Act under the heading "Was the Minister functus officio?"

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 Corp v Redmore Pty Ltd (1989) 84 ALR 199 ; 63 ALJR 306; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146-7. 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 New South Wales Trotting Club Ltd v Glebe Municipal Council, supra; Pratten v Warringah Shire Council [1969] 2 NSWR 161 at 167-8. 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 (1980) 613 F 2d 1176 at 1178-9; Schweiker v Hansen 450 US 785 at 787-0, which is criticised for its caution by Professor Davis in his Administrative Law Treatise, 2nd ed, 1983, para 20.5.

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.

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 LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503 Bowstead on Agency, 15th ed, 1985, pp 290-2. Further, some assistance by way of analogy may be derived from the rule in Royal British Bank v Turquand (1856) 6 E & B 327 ; 119 ER 886, which is discussed in Australian Capital Television Pty Ltd v Minister for Transport and Communications, supra, at 155-8, 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.

In Lever Finance Ltd v Westminster (City) London Borough Council, supra, at 231, Lord Denning MR referred to an amendment to the Town and Country Planning Act 1968 (UK), 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, of 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) 6 E & B 327.

His Lordship also said at 230:


There are many matters which public 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.

Speaking of that decision, Sir William Wade (in his Administrative Law, 6th ed, 1988, 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.

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, pp 560-3; cf Broad Avenue Laundry & Tailoring v United States (1982) 681 F 2d 746 at 747-8.

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 34 A 34 AA, 34 AB.

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.

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) 414 US 5 at 8, 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, p 559). No reliance was placed upon that doctrine on this appeal.

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 Halsbury's Laws of England, 4th ed, vol 8, p 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.

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.

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 Pt IX of the Judiciary Act 1903 (Cth) including ss 56 and 64. The subject is most recently discussed by Mr Dennis Rose in his paper, "The Government and Contract" in Essays on Contract, (ed Finn), 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 Commonwealth (1977) 17 ALR 513 ; 139 CLR 54 at 73-7; see also CLR at 113-14 per Aickin J.

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 (HK) v Humphreys Estate (Queen's Gardens) Ltd [1987] 1 AC 114.

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 Co (1970) 421 F 2d 92 at 100-1; Air-Sea Brokers Inc v United States (1979) 596 F 2d 1008. 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 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 Corp v Harrison (1984) 735 F 2d 408 at 411; USA Petroleum Corp v United States (1987) 821 F 2d 622 at 625-7; while the First Circuit has taken the contrary position: see Phelps v Federal Emergency Management Agency, supra; Federal Deposit Insurance Corp v Roldan Fouseca, (1986) 795 F 2d 1102 at 1108. 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 [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 least 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.

In my view, the same may be said of the super-imposition of the operation of the doctrines of promissory estoppel.

The distinction between merely operational decisions and those decisions which are the object of the statutory discretion (ie at the "policy" level) may be illustrated by reference to two recent Victorian cases. In Verwayen v 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) 164 CLR 387 ; 76 ALR 513. 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.

The second case, Waverley Transit Pty Ltd v Metropolitan Transit Authority (Supreme Court (Vic) (O'Bryan J), No CL58/88, 2 June 1988, unreported), appears to pose greater difficulties. The Metropolitan Transit Authority (MTA) 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 MTA entered into a number of "short-term contracts" with private bus operators, including the plaintiff. The plaintiff contended that officers of MTA 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" would 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 MTA's discretionary powers under the Transport Act 1983. These were "planning" or "policy", rather than merely "operational", decisions. Furthermore, the exercise of the MTA'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

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.

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 CJ and Wilson J (CLR at 404), per Brennan J (CLR at 429), per Deane J (CLR at 443), per Gaudron J (CLR 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) 49 CLR 507 at 547; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-5. 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.

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 CJ on the one hand, and by Deane J and Dawson J on the other, in Foran v Wight (1989) 88 ALR 413 at 431-2, 449 and 462 respectively). 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] 1 QB 467 at 482; Greasley v Cooke [1980] 3 All ER 710 at 712-13; Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1981] 1 All ER 923 at 936.

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) 467 US 51 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 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".

The competing view would be that expressed by Berger J in Re Smith and R (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, pp 191-2.

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?

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 (s 5(1)(e) and (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.

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.

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] 1 QB 643 at 707, 708-9, 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 Corp 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 at 441-2 per Smithers J and in Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 61 ALR 471 ; 9 FCR 98 per Northrop and Pincus JJ at 103-4. 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

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 (1989) 16 FCR 153 at 161-2 ; 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.

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

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.

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 283-4, 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 (Cth) pointed away from the applicability of issue estoppel to its determinations; see also Wiest v Director of Public Prosecutions, supra, at 508-10; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 ; 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"

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.

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 [1982] AC 617 at 651).

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 appear 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) 62 ALR 321 ; 159 CLR 550 at 563, 584-5, 600-1, 609, 632. First, in Re Preston [1985] AC 385 at 866-7, Lord Templeman said:


In principle I see no reason the 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.

Cf 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.

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 MR who said in Laker Airways Ltd v Department of Trade, supra, at 707:


The underlying principle is that the 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 countervailing benefit for the public: see Robertson v Minister of Pensions [1949] 1 KB 227; R v Liverpool Corp; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 and HTV Ltd v Price Commission [1976] ICR 170 at 185-6.

This view enjoys some academic support: see Craig, Administrative Law, pp 572-81; 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 MR 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 234-6. Accordingly, in my view, "unfairness" in this second sense is not a ground of judicial review.

Before I pass from this substantive sense of unfairness, there are two further cases which should be considered. In HTV 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 program 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 MR at 185, per Scarman LJ at 192, per Goff LJ 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 MR at 186, Scarman LJ at 189-91, per Goff LJ at 193-4. 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.

The second case which requires separate consideration is the decision of the Privy Council in Attorney-General (HK) v Ng Yuen Shiu [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.

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

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.

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.

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 pursuant to s 45 of the Probation and Parole Act 1983 the parole officer's report of 24 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 12 February 1987 have been deleted in accordance with s 45 of the Act.

Section 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:


45 Nothing in section 27(3) or 40(1) requires 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.

(The substance of that section is now embodied in s 49 of the Sentencing Act 1989).

In Kioa v West, supra, Mason J said (CLR at 587; ALR at 348) in the context of decisions to grant or refuse an entry permit under the Migration Act:


In the ordinary course of granting or 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: Re H K (an infant) [1967] 2 QB 617.

Mason 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": CLR at 587; cf Gibbs CJ (CLR at 569), Wilson J (CLR at 602), Brennan J (CLR at 629), Deane J (CLR at 634).

A minute prepared by an officer of the appellant's Department, dated 14 January 1988, discloses that the material obtained from the New South Wales 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.

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.

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.

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 Australian 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.

The transitional policy further provided:


Non-citizens convicted of offences 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.

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 CJ (CLR at 563, 567), per Mason J (CLR at 583), per Brennan J (CLR at 616-27), per Deane J (CLR 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 (HK) v Ng Yuen Shiu, supra; Century Metals and Mining NL v Yeomans (Federal Court (Full Court), 25 July 1989, unreported). 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) 14 ALR 519 ; 137 CLR 487 at 508-9 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) 49 ALR 123 ; 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.

The ambiguity in the term "legitimate expectation" was also explained by Lord Diplock in Council of Civil Service Unions 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 been 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.

Both 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.

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) 137 CLR 396 ; 14 ALR 1 presented a similar case: cf per Mason J in Kioa v West, supra, CLR 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.

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 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 (HK) 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, CLR at 582- 3 ; ALR at 345 (cited by Sheppard J in Haoucher's case):


It is a fundamental rule of the common 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.

Reference may also be made to Heatley v Tasmanian Racing and Gaming Commission, supra, per Aickin J (CLR at 508-9) (with whom Stephen and Mason JJ agreed); FAI Insurances Ltd v Winneke (1982) 41 ALR 1 ; 151 CLR 342 at 348 per Gibbs CJ, at 351 per Stephen J, at 360-2 per Mason J, at 376-7 per Aickin J; and South Australia v O'Shea (1987) 73 ALR 1 ; 163 CLR 378 at 417 per Deane J.

In Kioa v West, supra, CLR at 563 ; ALR at 330 Gibbs CJ approved a passage from Mason J's judgment in FAI Insurances Ltd v Winneke, supra, CLR at 360 ; ALR at 13 which, omitting citations, read:


The fundamental rule is that a statutory 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 (Vic)) or which deprives a person of a 'legitimate expectation', to borrow the expression of Lord Denning MR 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).

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 FAI 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) 46 ALR 123 at 130-1).

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.

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 Home Department; Ex parte Kahn [1984] 1 WLR 1337; R v Secretary of State for Home Department; Ex parte Ruddock [1987] 2 All ER 518, and Oloniluyi v Secretary of State for Home Department [1989] Imm AR 135.

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 LJ 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 [ie quashing the decision of the 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.

On that basis, the case does not advance the argument that legitimate expectations are entitled to substantive protection. Dunn LJ held at 1352 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. Although Dunn LJ 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 LJ, 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.

Q 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:


... in a case where ex hypothesi there is 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.

With 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.

In a third recent English case, Oloniluyi v Secretary of State for 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 LJ, 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.

I should add that in R v Secretary of State for 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".

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

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.

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) 66 ALR 299 ; 162 CLR 24 at 39 per Mason J; Muslowie v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 116 ; 13 FCR 179 at 188 per Beaumont J.

Conclusion

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.