Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Given the separation of powers between the Legislature, the Executive and the Judiciary for which the Constitution of the Commonwealth of Australia ('the Constitution ') provides, the opportunity for judicial review of administrative action is not unlimited (see per McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 ('Lam') at [76]-[77]). 90 Under s 64 of the Constitution the Governor-General was empowered to appoint 'officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish'. Such officers were to 'be members of the Federal Executive Council' and to 'be the Queen's Ministers of State for the Commonwealth'. The Minister is such an officer. 91 Under s 71 of the Constitution , the judicial power of the Commonwealth was vested in the High Court of Australia and, relevantly, 'in such other federal courts as the Parliament creates'. 94 The jurisdiction under s 75(v) of the Constitution does not exist for the purpose of enabling the judicial branch of government to impose upon the executive branch its ideas of good administration (per Gleeson CJ in Lam at [32]). 95 Constitutional writ relief under s 75(v) of the Constitution is discretionary. (See Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57 ; (2000) 204 CLR 82 ('AALA') at [5], [18]-[62], [145]-[150], [172] and [217]; see also Lam at [25] per Gleeson CJ.) 97 Lam concerned a Ministerial decision to cancel a visa held by a person with a substantial criminal history, under s 501(2) of the Migration Act 1958 (Cth). At the time when the cancellation of his visa was under consideration Lam was incarcerated, having been sentenced to imprisonment for eight years for trafficking in heroin. He was notified that contact was being sought with his children's carers to assess the possible effect upon them of a cancellation of his visa. As it transpires, the relevant Minister made no attempt to contact the carers. 98 The High Court dismissed Lam's application for prohibition and certiorari in respect of the relevant Ministerial decision to cancel his visa. Lam alleged that the relevant Minister failed to accord him procedural fairness/natural justice by failing to make the foreshadowed contact with the carer of his children. 99 Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation (per Gleeson CJ in Lam at [34]). 100 A failure to observe an expectation reasonably attributable to a party such as Telstra does not reasonably (perhaps better expressed as 'necessarily') found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in the particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process, not the decision. (Per McHugh and Gummow JJ in Lam at [105]). 101 On no view can the doctrine of 'legitimate expectation' give rise to substantive rights rather than to procedural rights (per Callinan J in Lam at [148]; see also per Gleeson CJ at [28]). 102 The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in AALA at [62]; see also per McHugh and Gummow JJ in Lam at [48]). 103 Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice (per Gleeson CJ in Lam at [37]). 104 If, in making a decision, a decision-maker is obliged to act with procedural fairness, the decision-maker must give a sufficient opportunity to those directly affected by the decision to present material and argument before the decision is made (per Hayne J in Lam at [114]).