Is Teoh's Case Still Good Law

Abstract

The controversy surrounding Teoh's case appeared to have largely been dimmed by the High Court's subsequent decision in Lam’s case. In the latter case the court expressed strong reservations about the continued use of the legitimate expectation, which had provided the basis in Teoh's case for the acceptance by the High Court that an administrative decision-maker should, in some instances, take account of a relevant international treaty prior to making a decision that might have an adverse effect.

The Lam case focused principally on the doctrinal coherence of the legitimate expectation and its continued possible relevance to the requirements of procedural fairness, but it also seemed to signal a curb or even an end to the influence of international instruments in administrative decision-making. If the legitimate expectation provided the means by which a decision-maker was obliged to take account of principles embodied in an international instrument to which Australia was a party, surely the disapproval of that device would stymie any need to take account of international instruments. But the President of the Court of Appeal of Victoria recently suggested otherwise in Royal Women's Hospital v Medical Practitioners Board of Victoria. Maxwell P acknowledged that Teoh's case had been widely criticised and might be decided differently by the current High Court, but declared: "the legitimate expectation test continues to be applied … In any case, the question of legitimate expectation represents only one part of what was said in Teoh. The other propositions … about the relevance of international human rights law are still good law, and continue to be applied."

Although this statement might seem at odds with the reasoning of Lam's case, it highlights the uncertainty that still surrounds Teoh. More particularly, it draws attention to effect that the apparent decline of the legitimate expectation might have on the influence of international instruments in administrative decision-making. That issue first requires a brief return to the Teoh and Lam cases.

Keywords: Teoh's Case, Administrative Law, Administrative Decision making, Consideration of international treaties, international instruments and administrative decision-making

JEL Classification: K00, K1, K10, K3, K30, K33, K39, K4, K40, K49