The Concept of Legitimate Expectations
SUBSTANTIVE LEGITIMATE EXPECTATIONS IN AUSTRALIAN ADMINISTRATIVE LAW
MATTHEW GROVES∗
[Judicial review of administrative action has traditionally had a procedural focus. This means that courts examine the procedure by which a decision is made, rather than the decision itself. A denial of natural justice is no exception to review — a person dissatisfied with an administrative decision has long been able to complain about the fairness of the decision-making process but not the fairness of the decision itself. English law has recently developed a doctrine of ‘substantive unfairness’ by which an expectation about the outcome of a decision-making process can be protected by the courts in a strong sense. The strength of the protection given under this new doctrine seems to blur the distinction between process and outcomes, which leads judicial review in a radical new direction. This article explains the English doctrine of substantive unfairness and considers whether it can and should be adopted in Australia.]
CONTENTS
I II III IV V Introduction ............................................................................................................ 471 The Concept of Legitimate Expectations ............................................................... 472 Substantive Legitimate Expectations in England ................................................... 475 Coughlan: The Acceptance of Unfairness in Its Own Right .................................. 477 The Post-Coughlan Adjustment and Entrenchment of the Doctrine in England.... 482 A The Refinement of Coughlan .................................................................... 483 B ‘Conspicuous Unfairness’ — A Separate Head of Review or a Sign of Abuse of Power?........................................................................................ 487 C The Doctrinal Break between Estoppel and Public Law ........................... 489 D The Separation of Powers
MATTHEW GROVES∗
[Judicial review of administrative action has traditionally had a procedural focus. This means that courts examine the procedure by which a decision is made, rather than the decision itself. A denial of natural justice is no exception to review — a person dissatisfied with an administrative decision has long been able to complain about the fairness of the decision-making process but not the fairness of the decision itself. English law has recently developed a doctrine of ‘substantive unfairness’ by which an expectation about the outcome of a decision-making process can be protected by the courts in a strong sense. The strength of the protection given under this new doctrine seems to blur the distinction between process and outcomes, which leads judicial review in a radical new direction. This article explains the English doctrine of substantive unfairness and considers whether it can and should be adopted in Australia.]
CONTENTS
I II III IV V Introduction ............................................................................................................ 471 The Concept of Legitimate Expectations ............................................................... 472 Substantive Legitimate Expectations in England ................................................... 475 Coughlan: The Acceptance of Unfairness in Its Own Right .................................. 477 The Post-Coughlan Adjustment and Entrenchment of the Doctrine in England.... 482 A The Refinement of Coughlan .................................................................... 483 B ‘Conspicuous Unfairness’ — A Separate Head of Review or a Sign of Abuse of Power?........................................................................................ 487 C The Doctrinal Break between Estoppel and Public Law ........................... 489 D The Separation of Powers