aligned to procedural requirements or to the substantive protection of the treaty. McHugh J
highlighted that the doctrine of legitimate expectation was aligned to procedural fairness rather
than an ‘owed right’ as explained in the ratio.44 The question arose as to whether the court’s
decision in Teoh could be justified based on ‘legitimate expectation’ or were there underlying
factors that influenced this decision.
A variety of external factors such as lobbying by members of parliament for the incorporation of
International Human Rights Treaty as well as the international community’s sensitivity on the
gravity of the issue may have been said to have influence the judgment of Teoh. The welfare of
the family and children has of paramount importance to the international community throughout
the period of this decision. The courts were forced to weigh between the welfare of the family
and their international expectation to that of the principles enrooted into the doctrine of dualist.45
It meant that if this is expectation is true, following the line of precedent shouldn’t the
respondent in cases like Lam v States46 be afforded this expectation like Mr. Teoh?
At first glance it may seem as both cases were identical however, if one holds a microscopic
view, one will realize that Teoh’s importance to his children and his family was different from
Lam’s. Teoh was the sole breadwinner to a family of nine (9) as compared to Lam who
occasionally interacted with his daughters and the courts had to take this into consideration when
extending the degree of the expectation. McHugh J disagreed that either Teoh or Lam was
entitled to an ‘expectation’ and accused the court in Teoh of ruling on sympathetic grounds
rather than that of law. McHugh J asserted that the court had no obligation to give substantive
protection to any right, benefit, privilege or matter that is the subject of a legitimate
expectation.47This “expectation” does not require a decision-maker to inform a person affected
by a decision that he or she will not apply a rule when the decision-maker is not bound and has
given no undertaking to apply that rule.
Joseph and Boyce raised a similar issue. The courts were faced with determining between
whether they were to oblige to give a condemned man the opportunity to life or to permit a
state’s interest to a hasty execution. This decision was influence by two important points, firstly
44
Elliot, 31
Verma, 69
46
(2003) 214 CLR 1, [2011] UKPC 14
47
B Fehlberg and J Behrens, Australian Family Law The Contemporary Context (Oxford University Press, 2008) 39.
45
31