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.

Acts Interpretation Act 1901

Judiciary Act 1903

Migration Act 1958

Administrative Appeals Tribunal Act 1975

Administrative Decisions (Judicial Review) Act 1977

Sentencing Act 1989 (N.S.W.)

Transport Act 1983 (Vic.)

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 66; 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] NSWStRp 14; (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 [1970] EWCA Civ 3; (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] NSWStRp 73; (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] FCA 90; (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 11; 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 795 F 2d 1102 (1986)

Anns v Merton London Borough Council [1977] UKHL 4; (1978) AC 728

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] VicRp 48; (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 [1976] EWCA Civ 10; (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] FCA 450; (1988) 86 ALR 464

Commonwealth v Sciacca (1988) 78 ALR 279

Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (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

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.

Orders 2 and 5 of the Orders made by Einfeld J. on 2 March 1989 be set aside.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

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 1988

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."

The Minister has appealed from the whole of those orders.

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 -

(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."

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.

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 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."

9. 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.

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 Immigration

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."

4. 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:

"This matter comes before the Court as an application

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."

5. 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.

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 1988

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."

8. 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.

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] NSWStRp 14; (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 argued

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 [1937] NSWStRp 14; (1936) 37 SR (NSW) 288; 54 WN 77 is entirely

different from the present case."

11. 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.

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 issue

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) 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."

15. 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.

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 this

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."

17. 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:

"(iii) the applicant's prospects for

rehabilitation appear to be reasonable

and he now has no overt symptoms of any

mental illness. I regarded the risk of

recidivism as low."

Reference 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:

"(b) the problems that led to the commission of

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."

18. Among the comments made by the minute writer on the representations contained in the comprehensive submission were:

"(b) although the Minister in ordering deportation

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."

As 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:

"The Parole Board is disturbed about the

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."

In addition, the departmental minute contained this paragraph:

"26. Further information was provided by the

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'."

19. An extract from the parole officer's report of 12 February 1987 which was reproduced in the departmental minute concluded with these words:-

"It is reiterated that Mr Kurtovic still appears

to be psychiatrically disturbed and is in need of

treatment before any decision is made regarding

release."

20. 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:

"(ii) Possibility of recidivism

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)."

Finally as one of the factors in favour of deportation there was listed:

"(ii) The risk of Kurtovic re-offending is difficult

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."

21. 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.

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.

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 -

(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."

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.

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 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."

4. 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.

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.

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

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] FCA 291; (1988) 81 ALR 687 at 695. But upon what basis does this proposition rest, and are there exceptions or qualifications to it?

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 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 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 66; 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:

"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] 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."

Much 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.

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 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 The King (1950) 2 DLR 225 at 232.

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. 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."

16. 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] NSWStRp 14; (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:

"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."

17. 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.

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 [1970] EWCA Civ 3; (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] NSWStRp 73; (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, 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] EngR 470; (1856) 6 E & B 327."

"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."

25. 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.

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] FCA 90; (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 11; 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 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 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.

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.

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] VicRp 48; (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.

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 [1976] EWCA Civ 10; (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.

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] FCA 450; (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.

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] FCA 212; (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.

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 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.

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 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 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."

This 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.

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.

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 pursuant

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."

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 (NSW).)

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 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: In re H.K. (An Infant)."

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" (at 587). Cf. Gibbs C.J. at 569, Wilson J. at 602, Brennan J. at 629, Deane J. at 634.

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] EWCA Civ 7; (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 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."

"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."

65. 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.

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 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.

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 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. 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.

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 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 (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.)

70. 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).

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 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 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.

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 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.

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.

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.