Attorney-General (NSW) v Quin

[1990] HCA 21

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Toohey JJ.

ATTORNEY-GENERAL (N.S.W.) v. QUIN

(1990) 170 CLR 1

7 June 1990

Administrative Law

Administrative Law—Natural justice—Appointment of judicial officers—Abolition of one set of inferior courts and substitution of another—Policy to appoint stipendiary magistrates of former courts as magistrates of new courts unless unfit for judicial office—Decision not to appoint former stipendiary magistrate set aside for failure to accord natural justice—Reconsideration of case—Change of appointment policy—Applicants to be judged on merit—Whether former stipendiary magistrate entitled to reconsideration of application on basis of former or current policy—Local Courts Act 1982 (N.S.W.), s. 12.

Decisions

MASON C.J. This is an appeal by the Attorney-General for New South Wales against a declaration made on 23 December 1988 by the New South Wales Court of Appeal (Kirby P. and Hope J.A.; Mahoney J.A. dissenting) requiring him to consider according to law an application dated 12 December 1983 by the respondent, Mr Quin, for appointment as a magistrate. The effect of that declaration was to require the Attorney-General to consider the respondent's application for appointment on its own merits and not in competition with applications from other applicants. The declaration was made in proceedings brought by the respondent which were a sequel to an earlier decision of the Court of Appeal (Kirby P., Mahoney and Priestley JJ.A.) given on 24 June 1987 whereby the Court declared void a decision of the Attorney-General on or before 12 December 1984 not to recommend the appointment of the respondent and four other persons as magistrates under the Local Courts Act 1982 (N.S.W.) ("the Act"): Macrae v. Attorney-General for N.S.W. (1987) 9 NSWLR 268.

2. In order to identify the issues which arise for decision in the present appeal, it is necessary to state in some detail the complex history of this matter. The proceedings which gave rise to the two decisions of the Court of Appeal have their genesis in the reorganization of the magistracy in New South Wales in 1985. At that time, six persons, including Mr Quin, who formerly held office as stipendiary magistrates under the Justices Act 1902 (N.S.W.) were not appointed magistrates under the new Act, which came into operation on 1 January 1985. Ninety-five magistrates who had held office under the Justices Act were reappointed under the new Act.

3. Before the Act came into operation, magistrates holding office under the Justices Act sat in Courts of Petty Sessions. The office of magistrate which they held ceased to exist when the new Act came into force. However, they were given an opportunity to apply to be appointed magistrates under the new Act. Section 12 of the Act makes provision for the appointment of new magistrates by the Governor. Appointment under the Act is by way of recommendation by the Attorney-General to Cabinet and then, on his recommendation, to the Executive Council. Schedule 1 to the Act is entitled "Savings and Transitional Provisions" and cl.5 is headed "Savings relating to stipendiary magistrates". The clause has been amended, but in respects which do not affect the present case. In its amended form cl.5 provides:

"(1) In this clause, 'former Magistrate' means a person who, immediately before the appointed day, was employed under the Public Service Act 1979, in the position of stipendiary magistrate. (2) A former Magistrate who - (a) accedes to the office of a Magistrate on the appointed day; and

(b) immediately before the appointed day, held another office under any other Act (other than the office of chairman of the bench of stipendiary magistrates) by reason of his having been a stipendiary magistrate when he was appointed to, or nominated for, that other office,

shall not vacate that other office by reason only of his not having been a Magistrate when he was appointed to, or nominated for, that other office. (3) A former Magistrate who does not accede to the office of a Magistrate on the appointed day is, if the former Magistrate has not attained the age of 60 years, entitled to be appointed to some position in the Public Service and is, until - (a) attaining that age; or (b) ceasing to be a public servant, whichever first occurs, entitled to be paid salary at a rate not lower than the rate of salary for the time being payable to a Magistrate of the rank or grading that is the equivalent (or the nearest equivalent) of the rank or grading held by the former Magistrate immediately before the appointed day.

(4) Neither the enactment of nor the provisions of subclause (3) shall be treated by any court or tribunal, or in any other way, as a precedent for the manner in which other persons may be dealt with."

4. Before 1 January 1985 all magistrates who held office under the Justices Act were invited on behalf of the Attorney-General to make application for appointment under the Act. A form was provided to them for this purpose. The letter written to them, which reflected the provisions of cl.5(3) of Sched.1, contemplated that former magistrates might not "accede" to the office of magistrate under the new Act. All but one of the magistrates holding office under the Justices Act applied. Of those who applied, all but five were appointed. The five former magistrates who applied and were not appointed became plaintiffs in the first proceedings against the Attorney-General. Two of those five have since retired, and a further two chose not to proceed in the present action, leaving only the respondent in this case.

5. The history of the matter was reviewed by Priestley J.A. in his reasons for judgment in the first proceedings: see Macrae, at pp 287-301. It seems that in early 1983 stipendiary magistrates generally had the impression that they would all be appointed to the office of magistrate under the Act. This impression was no doubt reinforced by a circular dated 21 April 1983 sent to magistrates by Mr Briese, the Chairman of the Bench of Stipendiary Magistrates, which stated:
"All persons who are now magistrates are to accede to the
office of magistrate under the Local Courts Act." The circular evidently reflected Mr Briese's then understanding of the attitude of the Attorney-General (Mr Landa) to the appointment of magistrates to the new courts. However, in the course of subsequent correspondence, Mr Briese made it clear to the Attorney-General that he did not favour the appointment of the five plaintiffs on the ground that their past performance had raised questions as to their suitability in point of ability and temperament. In the result, the Attorney-General made a reference to the New South Wales Law Reform Commission requesting the Commission to inquire into and report on the procedures and criteria which should be followed and applied in the selection of the persons first to be appointed as magistrates under s.12(1) of the Act.

6. The Commission delivered an interim report on 16 September 1983. This report recommended as follows:

"1. Stipendiary magistrates should not be automatically appointed as Magistrates under the ... Act. 2. The first appointments of Magistrates should be
undertaken by means of a process which we call 'phased selection'. Under this process: . applications for appointment would first be invited
from all stipendiary magistrates; . the applications would be assessed by an appointments committee which would advise the Minister as to the applicants who are recommended for appointment; . any vacancies arising after consideration of the applications from stipendiary magistrates would be filled, after open advertisement, by the Minister on the recommendation of the committee ..."

The report went on to recommend (recommendation 11) that the Act and, if necessary, the Public Service Act 1979 (N.S.W.) be amended to ensure that any stipendiary magistrate who did not accede to the office of magistrate should enjoy continuity of service and salary within the Public Service until the date of his or her retirement, subject to the discipline and conduct provisions of the Public Service Act. The report mentioned that "some well-informed participants in, and observers of, the system" had serious concerns about the suitability of some magistrates for appointment to the new courts. The existence of these concerns prompted the Commission to recommend that all serving magistrates should not be automatically appointed to the new courts and, along with other considerations, to make recommendation 11.

7. In November 1983, the Attorney-General constituted a selection committee as recommended by the Commission, with authority to make selections "in the terms and under the circumstances proposed in the (Commission's) report". A copy of the Commission's report was sent to every stipendiary magistrate along with an invitation to apply for appointment under the Act. The selection committee presented its report on 2 May 1984. The committee in its report referred to the opinions expressed by Mr Briese about the five plaintiffs and stated that as "a result of its inquiries and deliberations" it shared the view of Mr Briese and his deputies. However, the committee had been informed by the Attorney-General by letter dated 19 April 1984 that the Government had decided not to adopt the Commission's recommendation 11. This meant that the basis upon which the committee had proceeded was no longer appropriate. As a result, the committee recommended the appointment of all serving magistrates, subject to medical examinations and disciplinary proceedings; this included the five plaintiffs, on the footing that the committee could not conduct a formal disciplinary inquiry into complaints about the five plaintiffs and that their non-appointment, without security in terms of service and salary, would violate the constitutional convention of security of judicial tenure. The report did, however, recommend that the complaints against the five plaintiffs be investigated in disciplinary proceedings.

8. On 11 September 1984 the Attorney-General tabled the report of the selection committee in Parliament and made a statement in the course of which he asserted that the Government would not institute disciplinary proceedings against the plaintiffs, that he had been advised that there was no prospect that such proceedings would result in punishment of the plaintiffs such as to disentitle them from appointment pursuant to the committee's recommendations and that the Government would now implement the Commission's recommendation 11. This was subsequently achieved by enacting cl.5(3) of Sched.1 to the Act in its present form. Ultimately, on 12 December 1984, the Premier and Attorney-General (Mr Wran) announced that all serving magistrates, other than the plaintiffs, would be appointed to the new courts. It seems that the Government acted on the adverse comments made by the selection committee about the plaintiffs without giving them any opportunity of responding.

9. In the first proceedings, brought by summons on 24 December 1984, the plaintiffs sought declarations and consequential orders on the ground that they had been denied natural justice by the refusal of the Attorney-General to submit their names for appointment under the Act and by his refusal to accept the recommendations of the selection committee. At first instance Lee J. dismissed the summons. Before the Court of Appeal the five former magistrates sought the following declarations in lieu of the declarations sought at first instance:
"1. That the decision of the Attorney-General on or

before 12 December 1984 not to recommend the appellants' (plaintiffs') appointment as magistrates under the Local Courts Act 1982 was and is void; and

2. That the Attorney-General in considering each of the appellants' (plaintiffs') applications for appointment as magistrates under the Local Courts Act is not entitled to take into account or otherwise act upon any matter or material adverse or thought to be adverse to any of the appellants (plaintiffs) without notifying the person concerned of the existence and content of such matter or material and giving the person concerned a full and fair opportunity to be heard in relation thereto."

10. It was established that the material adverse to the five had been considered, that no notice of it had been given to them and that they had no opportunity of answering it, and that it was for this reason that they did not "accede" to the new position of magistrate. In the result, on 24 June 1987, the Court of Appeal made the first declaration sought by the plaintiffs, namely, that the decision of the Attorney-General made on or before 12 December 1984 not to recommend their appointments as magistrates under the Act was and is void. Leave was reserved to any party, to be exercised within twenty-one days, if thought fit, to make application in regard to further consideration of the second declaration which the plaintiffs had asked the court to make: Macrae, at p 309. The plaintiffs took advantage of this reservation and brought the matter back to the Court of Appeal. In the event they did not pursue the matter, save to seek and obtain an order that the costs of the abortive restoration be included in the costs of the proceedings which they had been awarded.

11. The case made by the plaintiffs in those proceedings was that they had been denied procedural fairness. They claimed that in the circumstances of the case they had a legitimate expectation that they would be treated fairly in the consideration of their applications for appointment to the new courts, that without their knowledge allegations were made concerning their unfitness to be appointed and that they were never given an opportunity properly to answer those allegations. They did not claim that, if all that had happened was that a new court was created and the Attorney-General was considering the first appointments to it, he would have to give notice to any persons whose appointment he was considering of any adverse matters concerning them coming to his attention before he decided not to appoint them. They relied very much upon the history of the matter. It was in these special circumstances that it was held by all members of the court in Macrae that the plaintiffs had a legitimate expectation of procedural fairness which had not been met. An application by the Attorney-General for special leave to appeal to the High Court from this decision was refused in 1988.

12. The Solicitor-General in the first proceedings had lodged with the Court of Appeal written submissions by way of response to the plaintiffs' restoration of the matter to the list when it was expected that the plaintiffs would seek the making of the second declaration. In those written submissions it was said on behalf of the Attorney-General (Mr Dowd) that he had decided in 1987 to depart from the course previously adopted in recommending former magistrates for appointment to the Local Courts. Previously the Attorney had recommended former magistrates who were not unfit. In 1987 he decided to select entirely on merit and that required an assessment of competing applicants. Consequently, he did not wish in 1987 to treat applications from any of the plaintiffs differently from those of any member of the public. One specific reason assigned for this course was the desire to appoint the most suitable persons. A second contention made by the Solicitor-General in his submissions was that the setting aside of the selection committee's recommendation in 1984 did not and could not restore the situation as it had existed at that time. This led to a further submission that the plaintiffs did not have "current applications for appointment".

13. On 12 April 1988 the solicitor for the plaintiffs in the initial proceedings wrote to the Attorney-General describing the history of the matter and asking that he take all steps to recommend to the Governor the immediate appointment of the three remaining plaintiffs. The Attorney replied on 11 May 1988 stating that he did not intend to depart from the usual selection procedure by recommending the appointment of the three plaintiffs. He said that they would be at liberty to apply in response to advertisements to be placed in the press. If they applied, the Attorney stated that he would regard himself as bound by the declaration made by the court and that he would ensure that the adverse material would not be taken into account unless the three plaintiffs were given an opportunity to respond. After observing that two members of the earlier selection committee would not sit on the committee in view of their previous involvement, the Attorney added:
"An application lodged by any of your clients will
therefore be dealt with in the usual way and assessed alongside applications received from other people seeking appointment."

14. Since 1 January 1985 the Attorney-General has caused positions as magistrates in the Local Courts to be advertised and the Governor has appointed forty-one further magistrates to those Courts. On 21 May 1988 he again advertised for further applications for appointment as magistrates and received ninety-four applications in response. Following interviews of the applicants, an eligibility list of fifteen was created and thirteen persons were appointed as magistrates from that list. It is said that there are now no vacant positions as Local Court magistrates. However, it was not suggested that the Governor could not make additional appointments in the future.

15. After the advertisements had been published, the solicitors wrote to the Attorney on 30 June 1988 stating that the plaintiffs' applications had never been considered properly or at all, that the plaintiffs had a legal right to have their applications, which they claimed were still pending, considered according to law and that they did not propose to make fresh applications. The letter requested the Attorney to appoint the plaintiffs as magistrates or consider their applications according to law. The Attorney responded by letter dated 14 July stating that there was no provision in the Act which would facilitate a retrospective accession to the office of magistrate and that the plaintiffs would not be considered for appointment unless they made application for it. The Attorney's response proceeded on the footing that, since the Court of Appeal's declaration on 24 June 1987, no further consideration had been given to the plaintiffs' applications because the view was taken that the applications ceased to be effective on 1 January 1985 for the reason that they were for appointment at that date.

16. It was in these circumstances that the three plaintiffs commenced the present proceedings in the Supreme Court in which they sought an order restraining the Attorney-General from filling current vacancies in the position of magistrate under the Act unless he left three unfilled positions, a declaration that the plaintiffs were entitled to have their applications considered according to law and an order that the Attorney hear the applications according to law. At the hearing, the plaintiffs other than the respondent withdrew their claims with the result that the respondent proceeded as the sole plaintiff. However, he abandoned his claim for an injunction.

17. All the members of the Court of Appeal were of opinion that the respondent's entitlement to have his application considered according to law, pursuant to the declaration made on 24 June 1987, was unaffected by his refusal to make a further application for appointment in response to the later advertisements. In this Court the Solicitor-General accepted the correctness of the Court of Appeal's decision upon this point and did not press the contrary view.

18. The point of departure between the majority and Mahoney J.A. was that the majority considered that inherent in the decision in Macrae was the proposition that the Attorney-General had placed all former magistrates in a special position whereby their applications were not to be considered in competition with other applicants; each was to be considered on his or her own merits and without regard to the merit of applicants who were not former magistrates. On the other hand, Mahoney J.A. thought that no such proposition was embedded in the judgments in Macrae. In his Honour's view, the three judgments in that case identified the issue as one of procedural unfairness and granted relief in that respect. His Honour's view of the judgments in Macrae is, in my opinion, correct: see per Kirby P. at pp 271, 273-274, 283; per Mahoney J.A. at pp 285-287; per Priestley J.A. at pp 304, 307-309.

19. The respondent's contention that the decision in Macrae went beyond the issue of procedural unfairness is partly based on the references in the judgments of the Court of Appeal to the plaintiffs' legitimate expectations. The plaintiffs did not argue in Macrae, nor does the respondent argue in the present case, that the plaintiffs had a legal right, or even a legitimate expectation, that they would be appointed to the Local Courts. It seems that what they asserted then, and what the respondent now asserts, is that they had a legitimate expectation that the Attorney-General, in considering whether or not to recommend their appointment, would accord them procedural fairness, that is, the opportunity to answer material which was adverse to them. It was that legitimate expectation, no more and no less, that attracted the duty to accord procedural fairness. Thus, Kirby P. held that the plaintiffs had a legitimate expectation, before the Attorney-General made a decision that they, alone of all their colleagues, would not be recommended for appointment, that they would have an opportunity of being acquainted with and of answering the adverse materials drawn to the attention of the Attorney: see at p 281. Similarly, Mahoney J.A. concluded (at pp 285-286) that the legitimate expectations of the plaintiffs would involve two things: that each would have the right to put his or her case in respect of such material; and that each would have the right to know of such material as was to be relied upon against him or her. Priestley J.A. concluded (at p 308) that the plaintiffs had legitimate expectations which would be affected by the Attorney-General's recommendation. His Honour seems to have thought that the plaintiffs' applications were more akin to renewal than to original applications. Indeed, he seems to have thought that "the substance of what was happening was removal" rather than original application or renewal: see at pp 305-306. However that may be, I do not read their Honours' references to legitimate expectations as amounting to any more than findings that attracted the duty of procedural fairness. I do not read the references as importing a duty to consider the plaintiffs' applications apart from and independently of applications by other applicants. Their Honours' reservation of the making of the second declaration sought indicates that this question had not been resolved by the reasons for judgment.

20. The respondent's principal submission in this Court is that the declaration made by the Court of Appeal on 23 December 1988 did no more than enforce the duty of fairness held to exist in Macrae. According to the respondent's argument, had the Attorney-General not improperly taken into consideration the adverse material in considering the respondent's application, in breach of the rules of natural justice, he would have appointed the respondent as a Local Court magistrate, along with the ninety-five other former magistrates who were appointed under the Act. The Attorney would then have had regard only to the question whether the respondent was fit for appointment, that being the only question to which he directed his mind when considering the applications of the ninety-five magistrates who were appointed. He would not have considered the respondent in competition with applicants who were not magistrates, as he now proposes to do. The next step in the argument is to say that the Court will grant relief in respect of the breach of the duty of fairness so as to ensure that his original application, which has not yet been dealt with, is considered as it would have been considered but for that breach of duty. Otherwise, so the argument runs, the respondent will be singled out for discriminatory treatment in comparison with the ninety-five former magistrates appointed to the Local Courts in such a way that his former status as a magistrate would be ignored. Moreover, the respondent submits that if the Attorney-General were to banish the adverse material entirely from his mind, as he should do, in order to comply with the declaration made in Macrae, then he should deal with the respondent as the ninety-five former magistrates were dealt with, by considering his application alone on its merits, not in competition with other applicants. The Attorney's refusal to take this course is, according to the argument, an indication that the adverse material is continuing to have a prejudicial effect.

21. There are two answers to the respondent's case. The first is that, according to the statement made by the Solicitor-General to the Court of Appeal, the Attorney-General decided in 1987 to depart from the course previously adopted in recommending former magistrates for appointment to the Local Courts. Previously he had recommended former magistrates who were not unfit. In 1987 he decided to select entirely on merit and that required an assessment of competing applicants. The respondent does not contend that such a change of policy did not take place in 1987 and there is nothing in the materials which would support any suggestion that the change of policy was motivated by a desire to take into account the adverse materials regard to which gave rise to the decision in Macrae. Accordingly, we must proceed on the footing that the Attorney-General changed his policy in making recommendations because he considered that the new policy would better serve the interests of the administration of justice in New South Wales by securing the appointment as magistrates of those persons who were best qualified and willing to serve.

22. Section 12 of the Act is expressed in very general terms. Sub-section (1) provides:
"The Governor may, by commission under the public
seal of the State, appoint any qualified person to be a Magistrate." Sub-section (2) prescribes the qualifications for eligibility for appointment. The section makes no attempt to prescribe the procedures to be followed or the criteria to be applied in making such an appointment, except in so far as s.12(1) requires appointment by commission under the public seal of the State. In all other respects the section leaves it to the Governor and to those responsible for advising him to adopt such procedures and apply such criteria as may be considered appropriate. In view of the practice followed in New South Wales in relation to the appointment of judicial officers, it was for the Attorney-General and Cabinet to decide what procedures, if any, should be followed and what criteria, if any, should be applied in selecting and recommending magistrates for appointment. After all, the Attorney-General may, without adopting any procedure or applying any set criteria, decide to recommend a particular person for appointment and that recommendation may be accepted by Cabinet, resulting in appointment by the Governor. Accordingly, the decision taken by the Attorney-General in 1987 to consider applications by former magistrates in competition with applications by other persons was in conformity with s.12. Moreover, it was an approach which the Attorney-General was at liberty to adopt as an element in the traditional process by which the Crown or the Executive appoints judicial officers.

23. Once this is accepted, I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy, or acting in accordance with such a policy, in relation to the appointment of magistrates, so long as the new policy is one that falls within the ambit of the relevant duty or discretion, as in this case the new policy unquestionably does. The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power: see Watson's Bay and South Shore Ferry Co. Ltd. v. Whitfeld (1919) 27 CLR 268, at p 277; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54, at pp 74-76; Malvaso v. The Queen (1989) 64 ALJR 44, at p 47; 89 ALR 34, at p 37; Birkdale District Electric Supply Co. v. Southport Corporation (1926) AC 355, at p 364; Cudgen Rutile (No. 2) Ltd. v. Chalk (1975) AC 520, at pp 533-534; Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB 416, at pp 423-425; Western Fish Products Ltd. v. Penwith District Council (1981) 2 All ER 204. Accordingly, it has been said that "a public authority ... cannot be estopped from doing its public duty", to use the words of Lord Denning M.R. in Lever Finance v. Westminster London Borough Council (1971) 1 QB 222, at p 230. See also Rootkin v. Kent County Council (1981) 1 WLR 1186; (1981) 2 All ER 227. As Gummow J. observed in Minister for Immigration v. Kurtovic (1990) 92 ALR 93, at p 111, the principle has been explained on the footing 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". cf. Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629, at p 638.

24. No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest.

25. What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v. Department of Trade (1977) QB 643, at p 707; but see also the criticism of this approach by Gummow J. in Kurtovic, at pp 121-122.

26. However, in the present case there is no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it has discarded in favour of a different approach which, in the opinion of the Executive, is better calculated to serve the administration of justice and make it more effective. Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers. Apart from s.12, under the constitutional arrangements which prevail in New South Wales and the doctrine of separation of powers, to the extent to which it applies in that State, the function of making appointments to the Judiciary lies within the exclusive province of the Executive. According to tradition, it is not a function over which the courts exercise supervisory control. In the present case those considerations are necessarily reinforced by the fact that here the respondent invites the courts to compel the Executive to depart from a method of selecting persons for appointment as magistrates which, in the view of the Executive, is calculated to result in the appointment of those who are best fitted for appointment.

27. Underlying the respondent's argument and the majority judgments in the Court of Appeal are the importance of the doctrine of judicial independence and the need to protect the security of tenure of judicial officers. The importance of these matters requires no emphasis. These considerations are relevant to removal from judicial office rather than to appointment to judicial office, except in so far as they bear upon the terms of appointment. For my part I am unable to equate the failure to appoint magistrates to the Local Courts with removal from their previous office. It was not suggested that the reorganization of the court structure involving the creation of the Local Courts was other than a genuine reorganization. It was not suggested that its object was to enable the removal from office by covert means of the respondent and the former magistrates who did not accede under s.12.

28. The second answer to the respondent's case is directed to his reliance on the procedure which was adopted by the present Attorney-General's predecessor in recommending the ninety-five former magistrates for appointment to the Local Courts as the measure of his entitlement to natural justice. Mr Handley Q.C. for the respondent went so far as to suggest that he had a legitimate expectation that he would be treated in the same way as his former colleagues and that any failure to accord that treatment would necessarily entail a denial of natural justice. That was not the legitimate expectation found by the Court of Appeal. As I have already noted, their Honours found that there was an expectation that the plaintiffs would be given an opportunity to answer adverse material and that this attracted an enforceable duty of procedural fairness. Some features of the unusual history of the proposals to restructure the magistracy and of the circumstances in which they came to be finalized and implemented might suggest that, if the plaintiffs had an expectation at all, it was an expectation, whether legitimate or not, that they would be appointed. But there is material which would justify the more limited conclusion that the plaintiffs had an expectation, whether legitimate or not, that they would be treated in the same way as the ninety-five magistrates were treated. In saying this, I am conscious that, in ordinary circumstances, the making of an appointment under s.12 would not attract the rules of natural justice. The section makes no provision for applications or for their consideration and determination. The case for holding that there was a duty to act fairly arising from the existence of a legitimate expectation depends entirely on the history and circumstances of this case, including the position of the plaintiffs as magistrates of the old courts.

29. Notwithstanding the criticism that has been levelled at the concept of "legitimate expectation" since it was first introduced by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, as a foundation for attracting a duty of procedural fairness, the concept has been accepted and adopted by this Court as denoting expectations which go beyond enforceable legal rights: Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342; see also Kioa v. West (1985) 159 CLR 550, at pp 563, 582-583, but cf. pp 616-618. The same development has taken place in the Privy Council (Ng Yuen Shiu, at p 636) and in the House of Lords: O'Reilly v. Mackman (1983) 2 AC 237, at p 275; In re Findlay (1985) AC 318; Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374.

30. It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by the giving of assurances (Salemi, at p 440; Kioa, at p 583; C.C.S.U., at p 401), the existence of a regular practice (Heatley, at pp 508-509; Kioa, at p 583; C.C.S.U., at p 401), the consequences of denial of the benefit to which the expectation relates (F.A.I. v. Winneke; Kioa, at p 583) or the satisfaction of statutory conditions (In re H.K. (An Infant) (1967) 2 QB 617). The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.

31. The duty to accord procedural fairness in connection with a claimant's legitimate expectation is sometimes said to be referable to a general duty of good administration: Ng Yuen Shiu, at p 638; C.C.S.U., at p 401; In re H.K., at p 630. But the content of that broader duty is still defined by reference to the claimant's legitimate expectation. In the absence of such an expectation, there is no corresponding duty to accord fairness. For that reason, although in one sense it means nothing to say that a person entitled to fair procedures or good administration has a legitimate expectation of being accorded such treatment, it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity: Kioa, at p 583; C.C.S.U., at p 408. The procedural right which forms the subject-matter of the legitimate expectation will not necessarily be the same as the procedure which procedural fairness or good administration, the duty to accord which is enlivened by the expectation, will demand. For example, in C.C.S.U., the expectation of consultation with management through trade unions, which but for issues of national security would have been a legitimate expectation, may not necessarily have sufficed to require that the procedures of consultation be maintained; procedural fairness or good administration may simply have demanded that there be a hearing before the practice of consultation was abandoned. In other cases, the procedural benefit which is legitimately expected will in fact be that which fairness or good administration demands should be accorded. So, in Ng Yuen Shiu, the claimant expected, and was entitled to, the procedure which had been publicly promised: at pp 637, 638.

32. Although a legitimate expectation may take the form of an expectation of a substantive right, privilege or benefit or of a procedural right, advantage or opportunity, it is helpful to avoid confusion between the content of the expectation and the resulting right to procedural fairness. Perhaps in pursuit of clarity of expression, courts have referred to a legitimate expectation that some benefit will not be denied or taken away without an opportunity of being heard; see Aickin J.'s discussion of the concept of "reasonable" expectation in Heatley, at p 508. In truth, the legitimate expectation in such cases is often simply that the benefit will not be denied or taken away. The "expectation" that the claimant will be heard ordinarily flows of itself from the primary legitimate expectation.

33. Although the legitimate expectation found by the Court of Appeal was of a procedural kind, the alternative expectation now contended for by Mr Handley has more of a substantive character about it. The notion seems to be that the plaintiffs were entitled to assume that they would be appointed along with their colleagues unless, perhaps, adverse material was raised against them, in which event they should have the opportunity of responding to it. In this respect the suggested expectation is substantive in character rather than procedural because it contemplates that the former magistrates would be considered in priority to other applicants for appointment.

34. In the cases in this Court in which a legitimate expectation has been held entitled to protection, protection has taken the form of procedural protection, by insisting that the decision-maker apply the rules of natural justice. In none of the cases was the individual held to be entitled to substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way. The prevailing view in this Court has been, as Stephen J. observed in Salemi (at p 442), that:
"(t)he rules of natural justice are 'in a broad sense a
procedural matter'", echoing the words of Dixon C.J. and Webb J. in The Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 396.

35. However, it has been suggested that legitimate expectations are entitled to substantive protection: see Forsyth, "The Provenance and Protection of Legitimate Expectations", (1988) 47 Cambridge Law Journal 238. The argument is that, when the expectation created is not that a proper hearing will be given but that the decision-maker will decide the case favourably or grant a benefit, the courts should by order ensure that the expectation is fulfilled. It is said that support for this view is to be found in Reg. v. Secretary of State for the Home Department; Ex parte Khan (1984) 1 WLR 1337; (1985) 1 All ER 40 and Reg. v. Secretary of State for the Home Department; Ex parte Ruddock (1987) 1 WLR 1482; (1987) 2 All ER 518. The first of the two cases is by no means persuasive. The reasons given by Parker L.J. and Dunn L.J., as the majority, for allowing the appeal were different. Parker L.J. considered that there was a denial of natural justice and quashed the decision on the footing that the Secretary of State could give effect to his previous representation which created the legitimate expectation or, if he considered it desirable to apply his new and altered policy, give the applicant an opportunity to make representations why it should not be followed: see at p 1348; p 49 of All E.R. Dunn L.J. held the decision to be unreasonable on the principles stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, at p 228, and quashed the decision. Either way the decision does not support the argument now under consideration.

36. The second case, Ex parte Ruddock, does provide qualified support for the argument. There Taylor J. referred to the observations of Lord Diplock and Lord Roskill in C.C.S.U. (at pp 408, 413, 415), supporting the view that the protection afforded legitimate expectations was procedural, and to the comment of Lord Fraser (at p 401) that where a person has a legitimate expectation of receiving a benefit or privilege "the courts will protect his expectation by judicial review as a matter of public law". Taylor J. went on to say (at p 1497; p 531 of All ER):
"Whilst most of the cases are concerned, as Lord Roskill
said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesi there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power. I accept ... that the Secretary of State cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it."

37. However, the view that legitimate expectations may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances. It is possible perhaps that there may be some cases in which substantive protection can be afforded and ordered by the court, without detriment to the public interest intended to be served by the exercise of the relevant statutory or prerogative power. Granted this possibility, the grant of substantive relief in the present case would nonetheless effectively prevent the Executive from giving effect to the new policy which it wishes to pursue in relation to the appointment of magistrates.

38. I acknowledge that, had the selection committee and the Attorney-General been aware in 1984 of the need to comply with the duty of fairness, in all probability they would not have relied on the adverse material, just as the Attorney-General now recognizes that it should not be taken into account, and so the respondent might well have been appointed as a Local Court magistrate on 1 January 1985, along with his ninety-five former colleagues. I also acknowledge that the breach of duty has generated a delay that has made it possible for the Attorney-General to adopt a new approach to the making of appointments with adverse consequences for the respondent. But the respondent does not argue that this new approach or procedure is ultra vires the statute. This, so it seems to me, is a fundamental flaw in his case for relief.

39. In the end the respondent's case depends upon the assertions that there was a breach of the duty of fairness when the Executive excluded him from the appointment process applied to former magistrates by taking into account the adverse material and that relief in respect of that denial requires reinstatement of that process to his application. That case fails because it would require the court to compel the Attorney-General to depart from a method of appointing judicial officers which conforms to the relevant statutory provision, is within the discretionary power of the Executive and is calculated to advance the administration of justice.

40. It remains for me to consider the suggestion that, assuming that the respondent had a legitimate expectation that his application would be treated on its merits and not in competition with applications from persons who have not been magistrates, then the Executive should not have disappointed his expectation without affording him natural justice by giving him an opportunity to make representations that there should be no change of policy.

41. It has been said that there is a conflict of authority upon the question whether a person who is adversely affected by a change of policy has a legitimate expectation which entitles him to make representations: see Ganz, "Legitimate Expectation: A Confusion of Concepts", in Harlow ed., Public Law and Politics, (1986), at p 161; see also South Australia v. O'Shea (1987) 163 CLR 378, at p 386; Ex parte Khan, at p 1347; p 48 of All ER; Ex parte Ruddock, at pp 1495-1497; pp 530-531 of All ER. That is a matter that requires examination on an appropriate occasion. However, in the circumstances of the present case, it would be unprofitable to undertake such an examination. The suggested basis for relief was not argued in the Court of Appeal and, even if it were well founded, it would not sustain the conclusion reached by the majority in the Court of Appeal. What the respondent sought and obtained in that Court and seeks here is a decision that the Attorney-General and Cabinet are bound as a matter of law to consider his application on its own; he has never sought an opportunity to make representations in relation to the change of policy in 1987. The respondent's reluctance to do so is understandable. In the light of all that we have heard it is not to be credited that the Executive would revoke a policy concerning the administration of justice generally in order to accommodate the individual interest of the respondent. It would be futile to grant relief on this basis.

42. Although I have come to the conclusion that the case presented by the Attorney-General must succeed, the making of an appropriate order presents a problem. Ordinarily the allowance of the appeal would entail the setting aside of the declaration made by the Court of Appeal. The declaration was in a form appropriate to mandamus and relied for its legal effect on the exposition of the law contained in the majority judgments. That exposition, in my view, was flawed, but not wholly so because it reflected in part the view, now conceded as correct by the Solicitor-General, that the respondent's application for appointment was still on foot and so there was no occasion for him to make a further application. The Solicitor-General, in argument, conceded that he could not challenge the declaration. However, it seems to me that it would be more appropriate if this Court substituted its own declaration for that made by the Court of Appeal. That declaration will more accurately reflect the judgment of this Court.

43. In the result I would allow the appeal with costs. I would set aside the declaration made by the Court of Appeal and in lieu thereof declare that the appellant is bound to consider in accordance with the judgment of this Court the respondent's application dated 12 December 1983 for appointment as a magistrate.

BRENNAN J. The Chief Justice has stated the circumstances out of which this appeal arises. I agree with his Honour's conclusion that the appeal must be allowed, but I reach that conclusion by a different path.

2. This appeal is against an order of the Court of Appeal of New South Wales requiring the Attorney-General to consider Mr Quin's application for appointment as a magistrate under the Local Courts Act 1982 (N.S.W.) "according to law". To ascertain what the Court of Appeal understood the law to require, it is necessary to refer to the reasons for judgment of the majority (Kirby P. and Hope J.A.). Hope J.A. held that the law requires the Attorney-General to consider Mr Quin "on his own merits and without regard to the merit of non-magisterial applicants" and requires Mr Quin's application to be considered "as an application by a former magistrate and not as one of a number of general applicants for appointment". Kirby P. was of a similar view, holding that there was no "warrant in treating Mr Quin and his colleagues merely as fresh applicants, in competition with other new applicants, when a principal basis of the previous decision (that is, Macrae v. Attorney-General for NSW (1987) 9 NSWLR 268) was their special position, from which only was derived their special entitlement". In substance, their Honours held that the Attorney-General is required to decide whether or not to recommend Mr Quin's appointment by considering whether he is a suitable applicant for appointment and not by considering whether he is the most suitable of the applicants for appointment.

3. The order of the Court of Appeal is said to have been made by way of judicial review, a term which conveniently describes the jurisdiction of the Supreme Court of New South Wales to make orders relating to the exercise of executive or administrative power conferred on or vested in the Executive Government or some other instrumentality of that State. The power with which this case is concerned is the power to appoint magistrates under s.12(1) of the Local Courts Act 1982 (N.S.W.) ("the Act"). That power is conferred on the Governor, and it is a novelty for a court to review judicially a Minister's advice to the Governor as to the Governor's exercise of a statutory power. At common law judicial review does not consist in assessing the legal effect of the steps taken preliminary to the exercise of a power but in a determination of the legality of the exercise or purported exercise of the power. The preliminary steps may be relevant to the legality of the exercise of the power but they are not themselves the subject of review. Where a power is conferred on the Governor, no act of the Minister amounts to an exercise, or a non-exercise, of the power. A court may examine - not review - what a Minister has done or failed to do if, but only if, the validity of the exercise of a power by the Governor depends on the Minister's reasons or on the procedure adopted by the Minister in deciding upon that advice. The court may be required to make that examination in order to determine whether a condition governing the exercise of the power has been satisfied. Except in such a case, it would be a major intrusion by the court into the workings of the Executive Government to review judicially the advice given to the Governor by a Minister. In F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342, it was an exercise of statutory power by the Governor, not the conduct of the Minister or of his Department, that was reviewed: see the declaration made at p 421. There is much force in the observation of Mahoney J.A. in dissent in the present case that "constitutional practice of this kind is, as such, not enforceable in the courts." However, I do not found my judgment on consideration of this problem. Of more importance is the notion of legitimate expectation. That notion was central to the respondent's argument in this Court and it is the notion on which the majority of the Court of Appeal founded their respective judgments in the present case and on which Kirby P., Mahoney and Priestley JJ.A. had founded their respective judgments in Macrae. I turn to examine that notion.
The statutory context.

4. The Act provides the chief statutory context in which Mr Quin's supposed legitimate expectation arose. Section 9 of the Act abolishes Courts of Petty Sessions. Mr Quin had been a Stipendiary Magistrate appointed to constitute a Court of Petty Sessions. Section 6 of the Act provides for the establishment of Local Courts. Section 7 invests Local Courts with the same civil and criminal jurisdiction as the Courts of Petty Sessions which they replaced together with such other jurisdiction as any Act or other law might confer or impose on them. A Local Court is to be constituted by a magistrate appointed under s.12(1) of the Act or by two or more Justices of the Peace: s.8. Section 12 of the Act provides as follows:

"(1) The Governor may, by commission under the public seal of the State, appoint any qualified person to be a Magistrate. (2) A person is qualified to be appointed as a Magistrate if he is, or is eligible to be admitted as - (a) a barrister or solicitor of the Supreme Court of New South Wales; or

(b) a barrister or solicitor, or a barrister and solicitor, of - (i) any Court of any other State, or of any Territory, of Australia; or

(ii) the High Court of Australia.

(3) A Magistrate shall, while he holds office as such, be deemed to have been appointed as a justice and a Stipendiary Magistrate. (4) The provisions of the Public Service Act 1979 shall not apply to or in respect of the appointment of a Magistrate and a Magistrate shall not, in his capacity as a Magistrate, be subject to those provisions during his term of office as a Magistrate."

Sub-section (4) marks a radical departure from the provisions which had previously governed the employment of magistrates. Under the Public Service Act 1979 (N.S.W.), a Stipendiary Magistrate appointed under the Justices Act 1902 (N.S.W.) to constitute a Court of Petty Sessions (see Justices Act, ss.7 and 14) was an officer of the public service remunerated under the Public Service Act (see ss.81,82,117 of that Act). The relationship of Stipendiary Magistrates with the public service of the State was of long standing. In 1909 the Justices Act had been amended to prevent the appointment as Stipendiary Magistrates within the metropolitan police district of persons who were not officers of the public service unless there were no person in the public service capable of performing the duties of the office: Justices Act, s.7A(4). In 1947, that provision was extended to apply to the appointment of all Stipendiary Magistrates: see Justices (Amendment) Act 1947 (N.S.W.), s.2(1)(c). Under the Act, however, the appointment and remuneration of magistrates of Local Courts were no longer to be affected by the Public Service Act. Section 12(1) gave no preference for appointment to officers in the public service and the terms and conditions of service of magistrates were to be determined by the Governor: s.22.

5. In these circumstances, it was necessary to make special provision for Stipendiary Magistrates of the Courts of Petty Sessions who might not be appointed as magistrates of Local Courts under the Act. Provision in that behalf was made by cl.5 of Sched.1 which read as follows:

"(1) In this clause, 'former Magistrate' means a person who, immediately before the appointed day, was employed under the Public Service Act 1979, in the position of stipendiary magistrate. (2) A former Magistrate who - (a) accedes to the office of a Magistrate on the appointed day; and

(b) immediately before the appointed day, held another office under any other Act (other than the office of chairman of the bench of stipendiary magistrates) by reason of his having been a stipendiary magistrate when he was appointed to, or nominated for, that other office,

shall not vacate that other office by reason only of his not having been a Magistrate when he was appointed to, or nominated for, that other office. (3) Any former Magistrate who does not accede to the office of a Magistrate on the appointed day shall, if he has not attained the age of 60 years, be appointed to a position in the Public Service not lower in classification or salary than that which he held immediately before that day."

Clause 5 provided some safeguard as to the terms and conditions of employment of former magistrates who might not be appointed to the office of magistrate when the Act commenced. The provisions of cl.5 were considered by the New South Wales Law Reform Commission when, in response to a request by the Attorney-General, it reported to him on the procedures and criteria which ought to be followed in selecting magistrates under s.12(1) of the Act. In that Report, the Commission concluded that cl.5(3) did not go far enough in the protection it afforded to former magistrates. In par.5.30 of the Report, the Commission said:

"We said in paragraph 4.28 that it would be a serious matter to disturb the expectation that stipendiary magistrates will enjoy continuity of service and salary within the Public Service. We also said there that legislation should be amended, or other action taken, to ensure that any stipendiary magistrate not appointed as a Magistrate will enjoy continuity of employment within the Public Service and will not be at risk of suffering a diminution of current salary, except in accordance with the conduct and discipline provisions of the Public Service Act, 1979. For reasons we have given, we do not think that stipendiary magistrates are entitled to automatic appointment as Magistrates. We do think, however, that they should not suffer loss of employment or reduction in salary as the result of the implementation of the Local Courts Act. This view is consistent with what we believe ought to have been the purpose of clause 5(3) of Schedule 1. Indeed, it may be consistent with a proper construction of that clause ..."

6. Thereafter, before the Act was proclaimed to come into force (on 1 January 1985) a new cl.5(3) was enacted by the Local Courts (Amendment) Act 1984 (N.S.W.) to read as follows:

"A former Magistrate who does not accede to the office of a Magistrate on the appointed day is, if the former Magistrate has not attained the age of 60 years, entitled to be appointed to some position in the Public Service and is, until - (a) attaining that age; or (b) ceasing to be a public servant, whichever first occurs, entitled to be paid salary at a rate not lower than the rate of salary for the time being payable to a Magistrate of the rank or grading that is the equivalent (or the nearest equivalent) of the rank or grading held by the former Magistrate immediately before the appointed day."

The Parliament of New South Wales afforded no further protection to former magistrates who were not appointed to the office of magistrate under s.12(1) of the Act on 1 January 1985. Whatever view one takes as to the sufficiency of the protection afforded by cl.5 to former magistrates, that clause makes it perfectly clear that the Governor had a discretion to appoint or to refuse to appoint a former magistrate to be a magistrate of Local Courts.

7. What, then, is the purpose of the Act? It was to ensure that, in the circumstances obtaining in New South Wales when the Act came into force, a fresh start should be made in the administration of justice in the lower courts. The Courts of Petty Sessions were abolished and the tenure of the former magistrates was destroyed by s.9; Local Courts, exercising at least the same jurisdiction but constituted by magistrates to be freshly appointed, took the place of the abolished courts. No vestige of the tenure of former magistrates was left. Whether the statutory scheme for making a fresh start was unjust to former magistrates is not a question for curial determination. Axiomatically, it is no function of the court to endeavour to resurrect and, by its order, to protect the tenure of the former magistrates which Parliament, by s.9 of the Act, destroyed.
The litigation.

8. When Mr Quin and several other former magistrates were not appointed as magistrates under s.12(1) of the Act, they sought and, on appeal to the Court of Appeal, obtained an order "that the decision of the Attorney-General on or before 12 December 1984 not to recommend the appellants' appointment as Magistrates under the Local Courts Act 1982 was and is void": Macrae, at p 309. The reason why the Court of Appeal made this order was that a selection committee, on whose recommendations the Attorney-General had acted in reaching his decision not to recommend the applicants in that case for appointment, had taken into account an adverse report by the Chief Stipendiary Magistrate on the suitability of the applicants without giving them notice of the contents of the adverse report. Kirby P. held that the plaintiffs, being former magistrates who had not been appointed under s.12(1) of the Act, had a "legitimate expectation of proper and fair attention to their application" and were "entitled to have the Attorney-General give his consideration to their appointment or non-appointment free from the influence of the information which, by inference, affected his initial decision not to recommend the appellants, when ninety-five of their colleagues were so recommended and later appointed": p 282. Mahoney J.A. was of the opinion that the plaintiffs "were entitled to expect that if particular instances falling within the kinds of matters to which their attention was directed were to be taken into account against them, the particular matters would be referred to their attention." His Honour did "not mean by this that they would have been entitled to expect a detailed examination of them or, a fortiori, a right of confrontation or cross-examination in respect of them. But they were ... entitled to know that particular matters of this kind were being held against them": p 286. And Priestley J.A. concluded that the applicants "had legitimate expectations that they would be fairly considered and given an opportunity of putting their case to the Attorney-General on matters he had in mind as adverse to their applications before deciding whether or not to recommend their appointment": p 308. An application for special leave to appeal to this Court from the order of the Court of Appeal was refused.

9. It may be noted in passing that the order in Macrae declared the invalidity of the Attorney-General's decision not to recommend the applicants for appointment, but the order did not purport to affect the Governor's decision not to appoint. There is a logical difficulty in declaring the invalidity of a non-exercise of power and in treating the steps leading to a non-appointment as a "decision" on an "application" when, in point of law (as distinct from the procedure which the Attorney-General chose to follow), no application was needed to enliven the power to appoint. Although these problems may now be regarded merely as part of the history of the case, they illustrate the need for caution in the making of declarations in administrative law when the availability of a substantive remedy is doubtful.

10. Of course, by the time Macrae was decided, the Local Courts had been established and the magistrates to constitute those courts had been appointed. Clause 5 of Sched.1 to the Act had taken effect. It was impossible at that time to appoint Mr Quin to one of the positions which were filled when the Local Courts were first constituted. However, occasional vacancies occur. The Attorney-General decided that he would on each occasion select and recommend for appointment the most suitable of the applicants qualified for appointment, whether or not a former magistrate was an applicant. Mr Quin, not having been appointed, brought the present proceedings. Kirby P., recalling that Mr Quin's legitimate expectation and the entitlement which flowed from it had arisen not from the experience of the former magistrates as judicial officers but from "the very fact that they had held such office", said that the vice of the course followed by the Attorney-General was that -

"The public interest in the security of judicial tenure upon the reconstitution of a court was given no apparent weight and was not acknowledged. The private interest of Mr Quin to have his application considered according to law, as the Court intended, was ignored."

Hope J.A. said that Mr Quin was entitled to have his application considered "with procedural fairness, and this has not occurred." His Honour said that Mr Quin was entitled to have his application

"considered by the Attorney-General on the same basis as that on which the applications by the other existing magistrates were considered, that is, as an application by a former magistrate and not as one of a number of general applicants for appointment."

In dissent, Mahoney J.A. said:

"I do not see in the matters underlying the Macrae decision or that decision an entitlement or legitimate expectation that Mr Quin would be preferred to a person who, notwithstanding the other matters for consideration, would be better qualified for appointment. That, in my opinion, was never in contemplation at that time as binding the Attorney General. And I do not see that the fact that the Attorney General departed from the procedural fairness referred to places such an obligation upon his successor to ignore, when a vacancy arises, a then better appointee."

Thus the foundation for the making of orders directing the Attorney-General when considering his advice to the Governor to accord Mr Quin a measure of natural justice (in Macrae) and directing the Attorney-General not to consider Mr Quin's suitability for appointment comparatively with the suitability of other applicants (in the present case) was the protection of what was said to be Mr Quin's legitimate expectation. In both Macrae and the present case, the legitimate expectation which Mr Quin was held to have entertained or to have had - I confess I am unsure whether a legitimate expectation needs to be entertained or whether an applicant is simply invested with it - was held to confer some legal entitlement enforceable against the Attorney-General affecting his consideration of the advice to be tendered to the Governor on the making of appointments under s.12(1) of the Act. The effect of Macrae.

11. The decision in Macrae stands as a final judicial determination that the Attorney-General was bound, in considering Mr Quin's application for appointment on or before 12 December 1984, not to have regard to the matters contained in the Chief Stipendiary Magistrate's adverse report without giving Mr Quin notice of it. Therefore it must be accepted that the Attorney-General did not then consider Mr Quin's application in accordance with law. Moreover, as the Act clearly contemplates that former magistrates may be appointed magistrates under s.12(1), it may be inferred that, in order to advise the Governor on the exercise of the power of appointment, the Attorney-General was bound to consider in accordance with law whether each of the former magistrates should be recommended for appointment. But the decision in Macrae carries Mr Quin's case no further. In particular, it does not purport to direct the Minister as to the criteria for selecting magistrates or to require that preference in appointment be accorded to former magistrates. It goes no further than declaring that it was not in accordance with law to consider Mr Quin's application for appointment in the light of, or affected by, the adverse report unless Mr Quin had had notice of its contents. The decision in Macrae does not purport to limit the free choice of the Governor in exercising his power to appoint magistrates. The nature of a power to appoint to a public office.

12. Except where the power of appointment to a public office is governed by statute, the power must be at large if its exercise is to answer the purpose for which it is conferred, namely, to advance the interests of the public. If the power is conferred by statute but the statute prescribes no procedure for the making of appointments nor any criteria governing the exercise of the power, the power must be at large for the same reason. The Executive Government or other repository of the power is entrusted with authority to decide who is best fitted to fulfil the duties of the office. It is inconsistent with the public interest to postulate any preferential right to appointment in an individual. But that is not to say that the prior occupation of a similar office and the desirability of according a measure of security in tenure to the holders of such an office are not legitimate factors to take into account in making an appointment. A distinction must be drawn, however, between a factor which legitimately influences the making of an appointment and an enforceable right to some degree of priority. Of course, there are some statutes - notably Acts governing the public service - which protect career prospects by creating legal rights to preference in appointments, but statutes which simply confer a power to appoint to a public office do not import preferential rights. If it be said that unfettered executive discretion lays the way open to patronage or worse, the remedy must lie in the hands of the legislature which created, or which may prescribe the manner of exercise of, a power of appointment or which may call to account the Minister who advises on the exercise of the power. The remedy does not lie in an examination by the courts of appointments made by the Executive Government or an insistence on judicially-declared criteria affecting the exercise of the power. A fortiori, when the power is to appoint to a judicial office.

13. It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorized by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution. The calibre of appointments to the judiciary depends solely on the Executive Government and that is a heavy responsibility which the Executive Government alone must bear. Therefore it is the criteria which appeal to the Executive Government, not the criteria which appeal to the courts, which necessarily prevail in the selection of judicial officers. The Crown's power to nominate to judicial office - by contrast with the power to remove from judicial office - has always been at the Crown's pleasure: see Blackstone's Commentaries, (1765), vol.1, p 259. As one would expect, the power to appoint magistrates in New South Wales has always been at large, except for the preference given by statute in 1909 and 1947 to officers of the public service: see Governor Phillip's Second Commission (1787), Historical Records of Australia, vol 1, p 4; 4 Will IV No.7, s.1; 45 Vict No.17, s.2; Justices Act 1902, s.7. As a matter of statutory construction, the power of appointment under s.12(1) of the Act is at large, to be exercised for the purpose of securing the proper administration of justice according to law by the Local Courts of New South Wales.

14. Yet, in the present case and in Macrae, the Court of Appeal sought to secure some preference in appointment for former magistrates whose judicial offices were abolished, pointing to the public importance of security in the tenure of judicial office which is critical to the impartial administration of justice. But the validity of the Act was not in question, and it was the Act which destroyed the security of the tenure of stipendiary magistrates appointed under the Justices Act. That was the work of the Parliament of the State.

15. The judgments of the Court of Appeal sought to mollify the consequences of the law for Mr Quin by finding (1) that Mr Quin had a legitimate expectation, and (2) that protection of Mr Quin's legitimate expectation required the s.12(1) power of appointment to be so exercised in respect of Mr Quin's application that other applications, even from more suitable candidates, be disregarded. If this approach be correct, the protection of Mr Quin's legitimate expectation confines the exercise of a power of appointment although Parliament did not confine it.
"Legitimate expectations".

16. In Kioa v. West (1985) 159 CLR 550 (at pp 617-618, 626-627) I stated some reservations about the notion of legitimate expectations to which I refer without repetition. This case raises in an acute form the question whether the remedies of judicial review are available to protect a legitimate expectation against the exercise of an executive or administrative power which otherwise accords with law. (Hereafter I shall refer to such a power as an administrative power, albeit the power is vested in the Executive Government.) The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual's legitimate expectations against adverse exercises of the power? I have no doubt that the answer is: none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.

17. Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive, although Mr Beatson has pointed out that -

"Ultra vires is ... both a powerful constitutional justification for judicial control and a useful organizing principle for the creation of a coherent subject from what has sometimes appeared to be a 'wilderness of single instances'."

("The Scope of Judicial Review for Error of Law", (1984) 4 Oxford Journal of Legal Studies, p 22.) The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338, at p 380, Gibbs J. said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall C.J. in Marbury v. Madison (1803) 1 Cranch 137, at p 177 (5 US 87, at p 111):

"It is, emphatically, the province and duty of the judicial department to say what the law is."

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

18. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

19. There is one limitation, "Wednesbury unreasonableness" (the nomenclature comes from Associated Provincial Picture Houses Ld. v. Wednesbury Corporation (1948) 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment (1986) AC 240, at p 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined. As Professor Wade explains (Administrative Law, 6th ed (1988), p 407) in a passage cited with approval in Reg. v. Boundary Commission; Ex parte Foot (1983) QB 600, at p 626:

"The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended."

20. If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.

26. Nor is the remedy now sought by the respondent necessary to make effective any relief which he was granted in Macrae or to give him the benefit of any issue which was determined in his favour in that case. In Macrae the respondent established his entitlement to a hearing for the purpose of consideration of the allegations made against him. It is now common ground that the allegations will not be taken into account without a proper hearing being provided. To require the Attorney-General to adopt a particular method of considering the respondent's application would be to do much more than make effective what has already been decided in his favour.

27. In F.A.I. Insurances Ltd. v. Winneke this Court determined that the refusal to renew a licence was void because of the failure to give the applicant a hearing. However, the term of any licence which might have been granted after a hearing had expired before the Court came to make its order. In these circumstances, Aickin J. (and Mason J. agreed with him on this point) thought that a hearing should be required upon any fresh application for a licence in order that the applicant might yet answer the case against him. There is much to be said for the view of Aickin J. upon the basis that consideration of the fresh application would, in the particular circumstances, be otherwise unfair. However, this is a different case. Here the respondent seeks to have his application treated in a particular way, something to which he was never previously entitled. He seeks to have it considered in a manner which would fetter the discretion of the Attorney-General and in all likelihood effectively determine the outcome in his favour. That is more than procedural fairness demands and the appeal should be allowed. I agree with the order proposed by the Chief Justice.

TOOHEY J. The circumstances giving rise to this appeal appear in the judgment of the Chief Justice.

2. In Macrae v. Attorney-General for N.S.W. (1987) 9 NSWLR 268, the Court of Appeal (Kirby P., Mahoney and Priestley JJ.A) made a declaration "that the decision of the Attorney-General on or before 12 December 1984 not to recommend the appellants' appointment as Magistrates under the Local Courts Act 1982 was and is void". Mr Quin was one of those appellants. Liberty was reserved to any party "to make, if thought fit, application in regard to further consideration of the second declaration", being the second declaration sought in the appellants' summons. That declaration, paraphrased, was that in considering the appellants' applications for appointment under the Local Courts Act 1982 (N.S.W.) ("the Act"), the Attorney-General should not act upon any matter or material adverse to the appellants without giving them the opportunity to be heard in regard thereto. Subsequently, some action was taken in regard to the second declaration but, in the end, it was not pursued. The reason appears to have been the wish of all parties to have a final order which was capable of being tested by application for special leave to appeal to this Court.

3. In 1988 this Court refused an application by the Attorney-General for special leave to appeal against the decision of the Court of Appeal. In consequence, the appellants had a declaration in their favour. But it was a declaration that, in its terms, went no further than to strike down the Attorney-General's decision not to recommend those persons for appointment as Magistrates under the Act, the relevant sections of which had been proclaimed on 1 January 1985. The Act is said to have "reorganized" the magistracy in New South Wales. No doubt, that is a convenient description of what happened. But more precision is required for the disposition of this appeal.

4. The Act abolished Courts of Petty Sessions (s.9), provided for the establishment of Local Courts (s.6) and invested the Local Courts with the jurisdiction hitherto exercised by Courts of Petty Sessions, together with such jurisdiction as might be vested in them by any Act or other law: s.7. The Act further provided that the Governor might, "by commission under the public seal of the State, appoint any qualified person to be a Magistrate": s.12(1). The judgment of the Chief Justice sets out cl.5 of the Savings and Transitional Provisions contained in Schedule 1 to the Act. (Clause 5 had been amended by the Local Courts (Amendment) Act 1984 (N.S.W.) before the Act came into operation.) The Act clearly contemplated that some Stipendiary Magistrates might not "accede" to the office of Magistrate under the Act, and in fact Mr Quin did not so "accede". Any Stipendiary Magistrate who did not "accede" was, in lieu, entitled to be appointed to a position in the Public Service, as described in cl.5, until he or she reached sixty years of age.

5. The Court of Appeal made the declaration it did because, in its view, the decision of the Attorney-General not to recommend the appointment of the appellants was made in such a way as to deny them their legitimate expectation of procedural fairness. Nevertheless, the declaration did not of itself ensure the appointment of any of the appellants as Magistrates under the Act. Any such appointment can be made only by the Governor. The practical situation is as described by Hope J.A. in the present proceedings:
"However, although not mentioned in the Act, the Minister
administering the Act is the Attorney-General. Appointment initially flows from his recommendation to Cabinet, and then to the Executive Council."

6. The proceedings the subject of this appeal were brought following a statement on behalf of the Attorney-General to the Court of Appeal on 16 November 1987, that he "does not wish in 1987 to treat applications from any of the appellants any differently from those of any member of the public". This was a departure from the policy that had hitherto prevailed, that the Attorney-General would deal with an application for appointment by a former Stipendiary Magistrate on its own merits and that such a person would accede to the new office unless considered to be unfit or unsuitable for appointment.

7. In the events that happened, of the original appellants in Macrae, only Mr Quin remained by the time the proceedings the subject of this appeal reached the Court of Appeal. The decision of the Court of Appeal on this occasion (Kirby P. and Hope J.A., with Mahoney J.A. dissenting) was in effect that the obligation on the Attorney-General was to consider Mr Quin's application for appointment as Magistrate on its own merits and not in competition with other applicants for appointment. The order against which the present appeal is brought is an order that the Attorney-General consider his application "according to law". The traditional language of mandamus sometimes conceals almost as much as it reveals and, in this case, it is necessary to determine what the Court of Appeal took the law to require and whether that is what the law does require. To do this requires a step beyond narrow questions of statutory construction into the wider area of the relationship between the courts and the Parliament and between the courts and the Executive.

8. But, in so doing, it should be made clear that Mr Quin makes no attack upon the validity of the Act itself. In particular, he does not contend that the Act was ineffective to abolish Courts of Petty Sessions and thereby to eliminate the office he held. No question of unconstitutionality arises in this appeal. Likewise, he does not contend that cl.5 of Schedule 1 does not operate according to its tenor, so that those who had hitherto been Stipendiary Magistrates would either accede to the position of Magistrate or be appointed to a position in the Public Service without loss of salary. Nor does he contend that the Act itself confers preferential treatment on former Stipendiary Magistrates. While there are important juridical questions at play, the argument before us was formulated in more specific terms, namely, that the decision in Macrae required that the Attorney-General consider Mr Quin's application on its own merits and without regard to the merits of applications by others.

9. Stipendiary Magistrates were appointed by the Governor in accordance with s.7 of the Justices Act 1902 (N.S.W.). Every Stipendiary Magistrate was "deemed to be a Court of Petty Sessions": s.14. The Justices Act was silent as to the duration and terms of their appointment. That is because they were officers of the Public Service: see Public Service Act 1979 (N.S.W.). Therefore, although Stipendiary Magistrates may properly be considered judicial officers, there was no statutory assurance that they hold office during good behaviour. In any event, as I have said, Mr Quin does not complain that he ceased to be a Stipendiary Magistrate; his complaint relates to the circumstances of his non-appointment as a Magistrate. And so, while the need for an independent judiciary can hardly be overstated, it would not be right to approach this appeal on the basis that the principle has been breached; Mr Quin does not complain that it has been, though underlying his case is the notion that it has not been adequately recognized by the Attorney-General.

10. Again, Mr Quin does not quarrel with the general proposition that, in making appointments to judicial office, the Executive may make such appointments as it pleases. The argument in Macrae that the decision to appoint or not appoint the appellants was an exercise of the royal prerogative, hence immune from judicial review, does not arise here. The position is made clear by Mahoney J.A., when he said:
"It is proper to recognise that the argument in the
present proceeding has been directed, in its terms, to what can or should be done by the Attorney General. There has been no submission made as to the right of the court, by declaratory judgment or otherwise, to stipulate what can or should be done by the Governor in the exercise of, as it is in this case, his statutory power of appointment." The appointment of judicial officers for reasons other than merit would rightly attract the wrath of the community as did President Roosevelt's plan to "pack" the Supreme Court of the United States in 1937. But the appointments would not thereby be invalid. In ordinary circumstances, the courts have no role to play when it is suggested that a person appointed to judicial office was not appointed by reason of merit or even that the person was wholly unsuitable for judicial appointment. A court might, in an extreme case, make its views known but it would have no jurisdiction to interfere with the appointment.

11. All this, I think, is taken for granted by Mr Quin. But he seeks to take his situation out of the ordinary by contending, not that he had a subjective hope of being appointed, but that, in all the circumstances, he had a legitimate expectation that his application to be appointed a Magistrate under the Act would be treated in the same way as those of other former Stipendiary Magistrates, that is, considered on its own merits and not in competition with applications made by other persons.

12. To put the matter that way does not identify with any precision the basis of the expectation. Nor does it come to grips with the difficulties implicit in the notion of legitimate expectation. As to the former, to say that Mr Quin expected to be treated as the other Stipendiary Magistrates were treated says little. Why did he so expect? The answer lies, in large part, in the unusual circumstance that the legislature was abolishing one court and effectively transferring its jurisdiction to a newly created one. In Macrae, at pp 278-281, Kirby P. pointed to the approach generally taken by the legislature in this country, and in England and elsewhere, when a court is abolished and its functions transferred to a new court - judicial independence and tenure are preserved by appointing the judicial officers exercising the jurisdiction of the abolished court to the new court or by retaining their office in some way. The President offered instances that "demonstrate that the convention of respecting the continuance of persons who enjoy judicial office has also been extended to the magistracy": at p 279. I do not wish to add to what is said by Kirby P. regarding the continuance of persons in judicial office; it is important, though, to stress, as his Honour has stressed, that the various instances referred to have not always depended upon some constitutional requirement or convention. And, as Mahoney J.A. suggested in Macrae, at p 287, "where what is involved is the abolition of one judicial office and the substitution of another, that fact is of importance in determining what may be expected by the holder of the office which is being abolished."

13. To approach the present appeal by reference only to the unquestioned (in this case) power of the legislature to abolish a court and the unquestioned (in this case) power of the Executive to make judicial appointments in its discretion, is to give insufficient recognition to an important step in between. What is at issue in the present appeal is not a decision by the Governor pursuant to s.12(1) of the Act. It is not even a decision of the Attorney-General not to recommend the respondent for appointment. It is no more and no less than the decision of the Attorney-General that he will now not consider Mr Quin's application in the same manner as he considered the applications of other former Stipendiary Magistrates, but that he will consider it only in conjunction with all other applications for the position of Magistrate. To treat the decision of the Court of Appeal as involving an intrusion by the courts into the power of the Executive and as a threat to the notion of separation of powers is to give the appeal a scope which it does not have and does not purport to have.

14. We must take as unchallengeable the decision in Macrae as it is a final order of the Court of Appeal and leave to appeal to this Court was refused. As Deane J. points out in his reasons for judgment, the present parties were parties to those proceedings and are bound "by the declaratory order which the Court of Appeal made and by the resolution of any issues of fact and law upon which it was based". There can be no dispute that the decision of the Court of Appeal was based on the proposition that rules of procedural fairness required that each of the appellants be given an opportunity of being heard before the Attorney-General decided that he or she was not suited for appointment to the new office. But underlying the decision was the assumption that the Attorney-General would recommend the appellants for appointment unless they were unfit or unsuitable. Notwithstanding the decision of the Court of Appeal, Mr Quin was not recommended for appointment to the new office nor was his application to be dealt with in terms of his fitness or suitability. The reason then offered was that the Attorney-General had altered his previous policy and intended to make recommendations for future appointments on the basis of merit as between all who applied.

15. As mentioned earlier in these reasons, there could, in ordinary circumstances, be no quarrel with the new policy announced by the Attorney-General. It is no more than would be expected of an Attorney-General who was properly carrying out his functions. In particular, there could be no complaint by anyone who had not been a former Stipendiary Magistrate. It is important, I think, to stress again that Mr Quin's case does not strike at the power of the Executive. It does not seek to carry the area of judicial review beyond existing or permissible limits; it does not ask to have evaluated the fairness of the new policy.

16. Although this litigation may be thought to have important overtones for the relationship of the courts to the Executive, it must be determined within the parameters set by the parties and in the light of Macrae. If Macrae has the consequences contended for by Mr Quin, his application should have been considered and determined as if he had been accorded procedural fairness, that is, the Attorney-General would have recommended his appointment unless satisfied that he, Quin, was unsuited or unfit for office. In that event the appeal should be dismissed. It is no answer to point to the undoubted power of the Attorney-General to recommend for appointment whom he chooses and, it may be added, according to the criteria he chooses. Nor is it an answer to point to the limitations fairly imposed on the power of courts to review administrative action. The issue for resolution is a narrower one, which involves giving full effect to the decision in Macrae.

17. The concept of legitimate expectation continues to prove troublesome as its parameters are explored by the courts. The expression itself has been in use in this Court at least since Salemi v. MacKellar (No.2) (1977) 137 CLR 396, though "reasonable expectation" has also been used from time to time, as in Salemi, at p 436, and in Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at p 508. Whatever the appropriate terminology, I am content to approach the question in the present appeal as one involving no more than the application of the rules of natural justice, in particular that Mr Quin should be accorded procedural fairness in the consideration of his application. That much is implicit in the decision in Macrae and is implicit in the order of the Court of Appeal that the Attorney-General consider the application according to law.

18. Because the Act abolished Courts of Petty Sessions and thereby the positions held by some 100 Stipendiary Magistrates, the Attorney-General adopted a special procedure which was designed to give recognition to the office held by those Stipendiary Magistrates who wished to be considered for the position of Magistrate; it did so by treating each applicant on his or her own merits and not in competition with other applicants. In that way some recognition was accorded to the security of tenure that is essential to the independence of the judiciary, though the recognition was not complete. The legitimate expectation thereby created was that Mr Quin (and others) would have his application considered and that the Attorney-General would recommend his appointment unless satisfied that he was unfit or unsuited for the new office. The matters alleged against Mr Quin do not negate that expectation; the opportunity to be heard in regard to any such allegations is part of the procedural fairness to which he is entitled.

19. By reason of the decision in Macrae, it must be taken as established that, in deciding not to recommend Mr Quin, the Attorney-General failed to give him an opportunity to be heard in response to matters bearing upon his fitness or suitability for the new office. The procedure adopted by the Attorney-General, in recognition of the unusual circumstance of the abolition of one court and the creation of another, would have resulted in the accession of Mr Quin to the new office unless he was unfit or unsuitable. To focus unduly on the formal order of the Court of Appeal in Macrae, without an appreciation of the circumstances which led to the making of the order, is to view the matter too narrowly. It gives inadequate emphasis to the particular circumstances in which the order was made: see Kioa v. West (1985) 159 CLR 550, at p 626. It fails to pay sufficient regard to those circumstances, from which sprang Mr Quin's legitimate expectation to have his application dealt with in a particular way. It is not inappropriate to borrow the language of the Privy Council in A.-G. of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629, at p 638, that:
"when a public authority has promised to follow a certain
procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty." Implementation of the procedure adopted by the Attorney-General does not interfere with his statutory duty, for it was an entirely apt procedure to follow in the special circumstances prevailing.

20. In the present case we have a declaration of the Court of Appeal in Macrae, based on the view that Mr Quin was entitled to have his application for appointment as a Magistrate dealt with in a particular way. It is not to the point that his position as a Stipendiary Magistrate was terminated by legislative action for he does not complain about that termination. His complaint is about the manner in which his application for appointment as a Magistrate has been dealt with. He says that he had a legitimate expectation that it would be dealt with in a certain way. The basis for his expectation was the office of Stipendiary Magistrate he previously held and the policy adopted by the Attorney-General in regard to the making of recommendations for appointment, a policy which gave recognition to the unusual circumstance in which a judicial office had been abolished and its functions transferred to another court. In those circumstances, it is but a short and inevitable step to say, as the majority in the Court of Appeal said, that Mr Quin had a legitimate expectation that his application would be dealt with as the applications of other former Stipendiary Magistrates had been dealt with, namely, on its merits. To say, as was said in the Attorney-General's statement to the Court of Appeal on 16 November 1987, that he will not take into account the allegations which led to the making of the order in Macrae, without giving Mr Quin a proper opportunity to meet those allegations, is to comply formally with the order of that Court. But it does not meet the gravamen of Mr Quin's present complaint.

21. I do not accept the view of Mahoney J.A. that Mr Quin's submission requires that the Attorney-General must consider his, Quin's, appointment before he considers the appointment of any other person, though that may have been the way in which the argument was put to the Court of Appeal. What the Attorney-General does in regard to the appointment of other persons is a matter for him. It is consideration and determination of a particular application with which this Court is concerned. It is an application that was made on 12 December 1983 and is still on foot.

22. In the circumstances described, there is no restriction on the exercise of executive power to require the Attorney-General to give effect to the previous policy, on the expectation of which Mr Quin made application for appointment as a Magistrate. It is true that circumstances have changed but, as Deane J. has pointed out, there is no insuperable obstacle to giving effect to that policy. The Court's hands are not tied, as F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342 demonstrates. In particular, there is no statutory bar to the Attorney-General making a recommendation that Mr Quin be appointed a Magistrate, once his application has been considered on its merits. This approach by no means ensures Mr Quin's appointment as a Magistrate. Proper consideration of his application by the Attorney-General may lead to a decision not to make the necessary recommendation. But it does ensure that he receives the treatment to which he is entitled by law.

23. The appeal should be dismissed.

Orders

Appeal allowed with costs.

Set aside the declaration of the Court of Appeal and in lieu thereof declare that the appellant is bound to consider the respondent's application for appointment as a magistrate dated 12 December 1983 in accordance with the judgment of this Court.

Reserve the question what order should be made with respect to costs in the courts below.