Lam, Ex parte - Re MIMA B33/2001 [2002] HCATrans 315 (24 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B33 of 2001

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte -

HIEU TRUNG LAM

Applicant/Prosecutor

GLEESON CJ

McHUGH J

GUMMOW J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 24 JUNE 2002, AT 2.18 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear for the applicant. (instructed by Boe Callaghan)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR S.J. LEE for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honour, it is correct, as my learned friends put it in paragraph 1 of their written outline, that there is only one issue. There are several ways of putting that issue but there is only one issue. That issue was confined by your Honour Justice Callinan by the orders made which included dismissing the balance of the application and confining the matter to the question raised in the notice of motion.

Therefore, the so-called second issue raised in our written submission should be seen as important only in this sense, which does not render it justiciable. It, like a number of other matters, clearly going to the balancing or weighing exercise motivating the Minister in his decision was something which was left, as it were, to occupy the field, that field having been, we say, skewed by reason of the error about which we do complain to this Court.

GUMMOW J: I have written "not pressed" beside your paragraph 13.

MR WALKER: Thank you, your Honour. I think I have just spent a lot of words saying exactly that. May I turn then immediately to jump in medias res to 65 of the application book.

GUMMOW J: Why is it that only this Court has jurisdiction in this particular case? This is not a refugee case.

MR WALKER: No, your Honour.

GUMMOW J: How does it come about with the federal - - -

MR WALKER: There is a time limit problem, your Honour.

GUMMOW J: A time limit problem?

MR WALKER: Yes.

GUMMOW J: I see.

MR WALKER: The correspondence about that is found at the back of the application book.

GUMMOW J: But you are not out of date under the Rules here as well, are you, for certiorari, for example?

MR WALKER: No, your Honour, I do not believe so.

McHUGH J: No, you have six months or 12 months for certiorari in this - - -

MR WALKER: Yes.

GUMMOW J: So, it is the 28-day rule, is it?

MR WALKER: That we fell foul of?

GUMMOW J: Yes.

MR WALKER: Yes, your Honour.

GUMMOW J: Where do I see that?

MR WALKER: Page 118 of the application book contains a crisp and correct letter to my instructing solicitors from Blake Dawson Waldron concerning some Federal Court proceedings.

GUMMOW J: Thank you. Yes, I interrupted you, Mr Walker.

MR WALKER: Page 65 of the application book is what the case is all about. My client was sentenced on 22 August 1995 to eight years, a sentence which reflected two heads of considerable discount for the offence to which he eventually pleaded guilty of trafficking dangerous drugs. For those reasons alone may I immediately make clear that he failed the character test within the meaning of that expression in section 501 of the Act.

That means that what fell out on 65 was the point upon which the weight of his argument by way of submissions administratively were focused because he too conceded that he failed the character test. This comes after a lengthy submission, to some of which I will be taking your Honours, to the Department and is the reply by the Department to some of the affecting matters there raised by Mr Lam - not affecting about his personal plight but affecting about the plight of his two daughters.

GLEESON CJ: Mr Walker, could I just get two matters straight in my own mind. Is there any suggestion that relying upon the representation contained in the third paragraph of this letter your client failed to put material before the Department that he would otherwise have put if he had known they were not going to contact the children?

MR WALKER: No, there is nothing to that effect in the application book. There is no trace in the record of any actual psychological effect in the nature of reliance or being lulled into a particular delusion by reason of the conduct, your Honour.

GLEESON CJ: And the second thing I wanted to ask you was this: I have an impression, but I may be wrong, that the Department appears to have been prepared to accept at face value everything that your client put to them about his children.

MR WALKER: Your Honour, that is an available inference. Whether the Court would draw it is really quite, with respect, doubtful. That is because the formula with which they complete that part of their recommendations, which I think your Honour must have in mind, says to the Minister and says, we say, quite fairly with respect, that it is open to the Minister to find that there may be, in effect, a certain detriment to the children. Why I say the inference may not be crystal clear is that there are matters of degree which are more or less put in, as I say, affecting terms in the material made available to the administrators and nothing appears in their written recommendation to the effect that they have accepted to any particular degree what I will call the weight or gravity of the matters put in the interests of the children.

So, yes, there is an available inference particularly from what is not said in that part of the recommendation that they were prepared to proceed in their recommendation to the Minister and thus the Minister is prepared to proceed in his decision on the basis of that recommendation, on the basis that there be no factual falsification of any degree with what might be called the historical record, for example, of dealings with the children and the like. As, however, to matters such as the degree to which the children look forward to their father's release to being together with him, to missing him, to his fatherly solicitude, there is no sign one way or the other whether that was accepted.

GLEESON CJ: Would your case be any different if, in the departmental recommendation to the Minister, there was an additional paragraph saying, "At one stage we thought of interviewing the children. We decided not to bother."?

MR WALKER: It would be different. We would still have a case but it would be a different case and raising a different issue concerning, in the instance your Honour has illustrated, the degree to which there needed to be prior notification of that change of direction to my client or those representing him. That is not this case, we say, although, by anticipation, I might observe that may well be the Minister's case that, in effect, anything could be said in advance about what might be done by way of further inquiry and reneged on silently and because the applicant is unable to swear to any particular psychological state as to reliance or some particular actual psychology in line with what has been called legitimate expectation, the case would still fail, says the Minister. We seek to differentiate those two positions.

GUMMOW J: Usually in these natural justice cases the applicant says, "Well, I didn't get the chance to put this or didn't get the chance to put that", in other words, at least it goes to discretion to know whether it is a serious matter.

MR WALKER: Yes. There is a reason why in this case that is neither appropriate nor fatal. At 65, as you will see in the third paragraph, the critical one that your Honours have already seen, the very point of what I will call the further inquiry was to go outside beyond or other than to the applicant to seek substantiation, corroboration, in order to permit an assessment. He cannot provide his own self-corroboration but what he was told was that there would be an attempt of that kind. It is, in our submission, in the realm of speculation, that is, it is impossible to weight probabilities of outcome as to what would have happened had he been told after receiving this letter but before the Minister made his decision. "We have decided not to avail ourselves of the contact details you supplied with respect either to the children's carers or to the children's mother."

HAYNE J: How does that stand with your answer to the question whether Mr Lam relied on what he was told?

MR WALKER: It stands thus, your Honour, that at the time the decision was made, Mr Lam had been told, not by way of a mere possibility or administrative hope but by way of a categorical and definitive proposition as to the procedure which would be followed in his case, that as to matters he had raised of a most important kind and relating to what I will call human relations and human feelings, particularly the children and perceptions of them by the carers, for example, that a certain procedure would be followed. The issue that we seek to raise can be expressed as a question: does it matter when an administrator reneges on something as definitive and categorical as that without prior notice?

HAYNE J: Putting it in that way simply obscures the principle upon which you are to test whether it matters.

MR WALKER: It certainly does not answer the question as to which criteria you adopt, your Honour, but that is the ultimate question. Did it matter in this case? That, in our submission, is - - -

HAYNE J: A matter for want of giving him a proper opportunity to be heard?

MR WALKER: Of telling him that there would not be the extra step in assessing his position by way of corroboration, substantiation, search for possible contradiction by going to people who were other than he, and that is the issue in paragraph 3 of the letter, not inviting him to do something himself apart from what he promptly did, namely supply contact details including, of course, further information about the estrangement between daughters and mother which would obviously differentiate this case from the usual case of a delinquent father leaving children with only one natural parent.

HAYNE J: I am at risk at being left well behind at the moment, Mr Walker, for this reason. He is the man who was to be heard. In what respect was he not heard?

MR WALKER: He was not heard in response to the news that in place of the substantiation he could confidently expect from the contact with carers - after all, we have seen some information second hand about that in the file before the administrators - he was not given an opportunity to deal with what would then be possibly scepticism by the administrators about matters that he had put to them.

GLEESON CJ: That is what prompted my original question to you and I must have misunderstood your answer. Is it part of the case that your client seeks to make out that if he had known that the Department was not going to interview the children and/or the carer, there is something that he would have done that he did not do?

MR WALKER: Your Honour, no, you did not misunderstand my answer to your question. You understood it properly.

GLEESON CJ: I do my best, Mr Walker.

MR WALKER: It is my best that is failing, your Honour. No, I cannot point to anything in the rather full record of submissions made by him. That is, he makes full submissions including submissions of argument as well as fact about his past, present and hoped for future contact with his children. I do not point to any matters in that topic which is the critical topic, the only topic. I do not point to anything extra over and above what is already put that he could have put. In other words, he was not cut off - this is not a Steed Case, he was not stopped on a matter. He was not deflected onto a false path.

The simple sole point in this case is whether or not it matters for the procedural fairness issue that he was told something else would be done which, of its nature, would conduce to enhance the merits of his application, so he was obviously entitled to believe, from the material already before the administrator. One can see from the recommendations - and this comes back to my answer to your Honour the Chief Justice's second question - that nothing is in fact said about the more important poignant individual details of these children's position by the recommenders.

There is a deal - and I do not complain about this because it is fair - not merely of paraphrased but of verbatim quotation and I want to make it clear that the material from which that is quoted verbatim I do not say was truncated, cut off or deflected by any of this administrative dealing.

GLEESON CJ: So, your first argument must come down to this, that fairness required that if they changed their mind about interviewing the children and the carer, they should have told your client?

MR WALKER: Yes. So that he could then, they having said the words which I am about to quote, consider whether or not something should be done in place of it. That third paragraph, importantly, uses the word "therefore" when it starts. That follows on from the second paragraph which, of course, makes this in one sense an ante-Teoh Case, an "after Teoh and because of Teoh" Case. The administrator was studiously emphasising the matters that arose from CROC that the best interests of the children shall be a primary consideration, and then they link to the particular request that thing which is specific to the course of procedure of decision making in this case, "Would you therefore kindly provide the details of the children's carers.", but we are given a reason, that is told about more to follow in the procedure of decision making:

The Department wishes to contact them in order to assess -

so the weighing exercise is called up -

your relationship with the children -

they have already heard what he said about his relationship and his belief as to their relationship with him -

and the possible effects on them of a decision to cancel your visa.

HAYNE J: It is perhaps the premise of that chain of reasoning you identify which I have difficulty with. It may not be in the best interests of the child of a criminal offender that that offender go to gaol.

MR WALKER: Yes. All the more reason to ensure that when you have set a certain course and telling somebody else something as drastic as that possibility - because what your Honour raises is, (a) a possibility, and (b) assuredly drastic - that there be care taken lest people not be told things are going to happen which will not happen. Now, in Teoh, writ large, that was the majority decision, that the people in question, without being grandiloquent about who they were politically, particularly non-citizens, had been told that certain things would be done, on the highest level of generality, of course, that the interests of the children would be paramount.

In Teoh, the reasoning of the majority was it mattered not that there was not proved by testimony any particular psychological effect on any particular person, least of all the affected person, of that knowledge of Australia's adherence to those international obligations, be it inside the country or outside the country.

GUMMOW J: That seems to be elevating it all into a procedure required by law.

MR WALKER: Your Honour, in Teoh it was not a procedure required by law.

GUMMOW J: I know, but it is the effect of it.

MR WALKER: It is certainly true - - -

GUMMOW J: It has to be here because relief is sought under 75(v).

MR WALKER: Yes. It is certainly the case that the effect in Teoh of detecting a breach of procedural fairness by failing to apprise the affected person that the administrator did not consider itself bound by the international obligation, that being the rather surprising finding of fact made in that case, that certainly has the effect of invalidating the decision and nothing that invalidates a decision can be other than a requirement of the law in general terms. I accept that, but there is nothing startling about the requirements of procedural fairness being seen as requirements of the law.

CALLINAN J: Mr Walker, why do you not have a case of actual expectation as opposed to what I will say is legitimate expectation, which some people might think a rather artificial concept?

MR WALKER: We have a case of actual expectation by inference from the correspondence. The letter is intended - the third paragraph that I have read at 65 is intended - no one could be heard to say to the contrary - to engender the firm belief that things would be done. The government, to use the colloquialism, had said so.

CALLINAN J: And that that belief may have been engendered - "maybe", I only put maybe, but maybe a fair inference from the letter at page 67 of 14 November, the response.

MR WALKER: The response was a complete acceptance by the fullness of its response - it goes on and adds some information, as your Honours know, about the mother in particular - - -

CALLINAN J: But it is a curiosity.

MR WALKER: It is a complete acceptance of the fact that it was going to happen.

CALLINAN J: But it is a curiosity really, as I think the Chief Justice may have been suggesting to you, the applicant has not said what he would have done or what he, in fact, expected and how things might have been different had he become aware - - -

GUMMOW J: And there comes an estoppel without any detriment.

CALLINAN J: Exactly.

GUMMOW J: And it is difficult to have estoppel in administrative law anyway.

MR WALKER: Yes. I do not put it as estoppel.

GUMMOW J: I know you do not. That would be a disastrous forensic choice.

MR WALKER: Yes. I stand or fall on the simplicity of the proposition that the government official deciding the fate of this particularly drastic matter for this person, my client, and derivatively his two children, said they would do something towards the assessment of matters which were critical to the weighing process. The weighing process is, for all practical purposes in our law, beyond judicial review, and properly so, highlighting the importance of ensuring that the way in which material is presented and the nature of the material presented is before the decision-maker in a proper way, including pursuant to those expectations appropriately engendered. Here there was an expectation clearly appropriately engendered because the government said very properly and very plainly that they would do something.

There can be no doubt from the letter at 67, as Justice Callinan has pointed out, that there was both reception of, understanding of and positive response to that letter by the government. In other words, "Here is the material you need plus a bit more information about the mother by way of a submission for the assessment you say you are going to carry out." They do not carry it out and, significantly, nothing appears in the record to justify not carrying it out.

HAYNE J: Then where would lie the difference, given that answer you gave early on in your submissions, if the letter from the Department had been, "We wish to consider contacting the children and their carer. Please give us their details."?

MR WALKER: If nothing more than a letter such as in the form of 67 were to appear, it might be that would be the end of the matter, your Honour. It might be.

HAYNE J: Therefore, what is the principle of law that required them to do what they said they would do?

MR WALKER: My answer adapts, recognising the fundamental differences concerning CROC, the approach taken by the majority in Teoh, and it is - - -

GUMMOW J: Now, talking about Teoh, one of the things I have never quite understood about Teoh is that the majority judgments are not linked into the AD(JR) Act. It was an AD(JR) Case, was it?

MR WALKER: Yes.

GUMMOW J: What was the particular ground of review they were construing?

MR WALKER: It is procedural fairness, your Honour.

GUMMOW J: Section 5(1)(a).

MR WALKER: Yes. I am just trying to pick up the way in which the Full Court decision is - - -

GUMMOW J: It could have been 5(1)(b) which is "procedures . . . required by law", which is not necessarily the same as 5(1)(a).

MR WALKER: No.

GUMMOW J: We do not know the answer to that.

MR WALKER: I do not think the High Court report - - -

GUMMOW J: I have sent for the Full Court judgment. That may be a little more forthcoming. We need to know these things.

MR WALKER: At 183 CLR 281, your Honours will see that under the heading "The decision at first instance", the challenged is paraphrased as follows:

on three broad grounds: (1) the delegate had failed to comply with the rules of procedural fairness - - -

GUMMOW J: Yes. Well, that is not the language of the section, is it?

MR WALKER: No. Hence, I think, the epithet, "broad".

GUMMOW J: Yes.

MR WALKER:

(2) . . . failed to take relevant considerations into account; and (3) . . .power in accordance with a policy without regard to merits - - -

GUMMOW J: Well, (2) and (3) certainly reflect the Act.

MR WALKER: Yes, and not all of those survived into the Full Court.

GUMMOW J: Now, are there not a number of decisions in England which take this legitimate expectation into these realms of substance and, if so, do you rely on them? If so, how do they feed into 75(v), namely, jurisdictional error?

MR WALKER: Your Honour, first there is no English decision I rely upon to make good my proposition that when the government says definitively and categorically it is going to do something towards decision making in your particular case, without more - and it is those two words that are at the heart of our case - unapprised reneging on that is a ground of procedural fairness.

GLEESON CJ: I thought that there was an English case dealing with some elderly person's right to remain in a nursing home or a combination of some kind, where they took that step of going beyond procedure into substance.

GUMMOW J: I think there is a recent decision in Hong Kong which connects them.

MR WALKER: There are several decisions from Hong Kong, none of which we rely upon because none of them supplies us with the ammunition we need to say it is the simple departure from what you said you would do which is the breach of procedural fairness in the case. I have yet to answer your Honour's question about - - -

HAYNE J: But the flavour of procedural unfairness spoken of in Teoh is perhaps further amplified, is it not, further down on 281 - - -

MR WALKER: Yes, there is a further particular.

HAYNE J: - - -with this further particular being - - -

MR WALKER: Yes, I was going to draw attention to that but - - -

HAYNE J: - - - a failure "to make appropriate investigations". Now, that is an unusual element of procedural fairness, is it not?

MR WALKER: It did not meet a very happy fate in the High Court though and those elements of my argument which partake of that quality are difficult to put. The failure to make appropriate investigations in the abstract is quite plainly rejected in the High Court in Teoh as being, as it were, a freestanding matter enabling the judicial branch, as it were, to mark the work of the Executive branch from the point of view of what I will call diligence or curiosity. They appear to be excluded as grounds of judicial review.

On the other hand, in our submission, both Teoh and, in a very narrow way, Foster's Case to which we have given some references in our written submissions, illustrate the need to consider whether or not circumstances give rise to either a failure to consider a relevant consideration, which is one of the variants of the way we put our case, or a failure of procedural fairness if those circumstances show that something should have been - and I choose the next word carefully - considered more than it was.

GLEESON CJ: But the unfairness lies in failing to notify your client that they had changed their mind about a particular step they had earlier said they would take.

MR WALKER: Yes, and that follows from the fact that apart from the law about relevant considerations and procedural fairness, there is no other law I can point to and, in particular, no specific requirement for this decision making under this statute to make the particular inquiry in question. So, all that the law could or should do, observing appropriate reticence of judicial review of administrative action, is to ensure that the decision is not made following a process diametrically opposed to that which had been announced.

Now, it is there that I call in aid this analogy with Teoh, notwithstanding that this case is ante or post-Teoh in the sense that CROC was heavily emphasised in this case, whereas its putative absence in Teoh was at the heart of matters, just as in Teoh, there was an announcement of the way in which the procedure would be done. Much more strongly than in Teoh, that was an announcement which went to this particular affected person and it was an announcement which clearly went home with him, hence the letter at 67. It was also, clearly enough, a matter about which he was vitally concerned, given that it involved the possible corroboration and substantiation of the matters that he had already said all that he needed to say on the matter.

Could I then take your Honours to the way in which the recommendations were put together for the Minister. They start at 83 with the covering letter. The actual document starts at 85. I can take your Honours directly to some of the high points which, as to the first, is the very low point for my client, page 93, paragraph 15. These are matters - namely, the high risk of recidivism recommended there as being an open finding - which, by reason of their adverse merit and their capacity to outweigh other considerations, render all the more critical, all the more important, that there not be departure from the further inquiry or investigation by way of so-called assessment upon contact which the letter at 65 had said, without qualification, without it being described as a mere possibility still under consideration, would be carried out.

At page 94, an equally dire bottom line in paragraph [19]:

it is open for you to find that the character concerns of offence are such that the Australian community may expect that Mr Lam should be removed from Australia.

These are matters which by reason of their dire effect on the weighing process highlight and, in our submission, enhance the importance of observing the procedures which were in advance specifically tailored for this case by way of announcement as to what would be done to look at the other side of the ledger, because it was all on the other side of the ledger the letter at 65 was looking. Your Honours will see a reference at the foot of page 94 in paragraph [23] to the submission received on 2 November. That is the 30 October letter which is found in the application book at 35 and following. Much is then quoted from that submission.

GUMMOW J: It was never said by your client - and if it were the fact, I imagine it would have been said - that the children could not speak Vietnamese, so they would be in a real difficulty if they had to go back to that country, nor was it said that Vietnam would not receive them because they are Australian citizens.

MR WALKER: Your Honour is right. Page 95 contains, however, the following matters of submission which are set out by way of submission. Line 9, for example:

They have no contact with people from Vietnam. They have a strong bond with me and have suffered greatly as a result of my crime and their mother abandoning them.

GUMMOW J: That is not quite correct, is it, that first statement?

GLEESON CJ: It must mean they have no contact with people in Vietnam.

MR WALKER: Yes.

GLEESON CJ: They have plenty of contact with people from Vietnam.

MR WALKER: All their familial and caring contacts appear to be with people who have come from Vietnam. It must mean "people in Vietnam", given that the same submission of course points out Vietnamese people with whom they have continuing contact, such as in paragraph 5 of the submission at about line 27 on the same page. At about line 35, again in relation to submissions, he makes assertions of a kind which may well lie in this case in the eye of the actor:

I have been a caring father . . . I have a close bond with them.

The assessment of that from the other side is something which he could never supply himself by submission. He could not say, "What do other people not beholden to me for their answers say about that?". On the other hand, he was told that the other side of the transaction, the carers, would be looked at.

GUMMOW J: So is the unfairness to him the loss of what appeared to be a chance offered to him which could, because the assessment would be by another party, have supported what he is saying in these paragraphs?

MR WALKER: Yes, it is precisely because it is the other party other than him. It is because it is not him that it would have its weight. It is because it is not him repeating what he has already said that it would add to the decision-making process. In our submission, it is something which would obviously be calculated appreciably to improve the decision making as to the nuances and emphases necessary in a weighing exercise which would be critical. This was all a weighing exercise, bearing in mind his concession that he failed the character test.

HAYNE J: Is it part of your proposition that he could not obtain this?

MR WALKER: Yes, your Honour. He obviously could not obtain what I will call an uncontaminated - your Honours have seen - I will take you to material - he had obtained observations by others. As your Honours will know from even the humblest of pleas in mitigation in the lowest courts, the reference from your father is quite different from a social worker assigned by the court.

GLEESON CJ: But you would be saying exactly the same thing, would you not, if they had not represented to him that they were going to interview the children?

MR WALKER: No, I would not. I would not have that argument then, your Honour.

GLEESON CJ: Why not? He would have lost the chance of independent corroboration by the children just because they did not interview the children.

MR WALKER: The bottom line would be correct, your Honour, but the same is true of, for example, a case where a consideration has not been taken into account which the decision-maker said they would take into account because the decision-maker regarded it as relevant in a relatively broad statutory discretion - Sean Investments. But for that being said by the decision-maker, one might still be in the position of saying, a la Browning, but the nature of the decision made that consideration relevant, therefore it should have been taken into account. But your argument would be quite different, more specific and considerably better, one would think, if you had that specific dealing beforehand by the decision-maker saying, "I'm going to take that into account".

So by analogy in this case, though, with respect, your Honour might be right that consideration would have been given to running the even more difficult case in the absence of the letter at 96 that these things had not been taken into account by reason of the outside perceptions of things, we do not have to run that much more difficult case because we have the categorical definitive statement which ought to be given weight as what it was: an assurance by government in the course of making a decision.

GUMMOW J: Could you just explain to me how you draw support from Sean Investments or draw relevance from it?

MR WALKER: Only in relation to a broad statutory discretion being capable of being informed by considerations which - - -

GUMMOW J: That was one of those nursing home cases, was it not?

MR WALKER: Yes, where the decision-maker can himself or herself adumbrate specifically some matters which will be considered relevant and, once having done so, will be judged by that standard. That is the only thing.

GUMMOW J: Is that what it decides?

MR WALKER: There is a dictum to that effect, your Honour. It is a long time ago. It has been cited innumerable times, I think mostly for the proposition I have just put.

GUMMOW J: Is it on anyone's list?

MR WALKER: No, your Honour. It occurred to me in answer to the Chief Justice. It is not part of my main argument. At the foot of page 95, the letter at 65 is referred to and it is referred to in these terms. True it is that this was annexed as I to this report but the Minister was told in the text the following things about it, that:

Mr Lam was sent a letter . . . asking for details of the children's carer -

and then interestingly -

and contact details for their mother.

In fact, the primary request signified by the use of the word "also" in relation to the mother on page 65 was for contact details for the carers, not just contact details for the mother.

The way in which that is paraphrased, no doubt inadvertently, certainly gives rise to the possibility that the reader would have simply understood that there had been a request for details, that is by way of once-off completed supply of details about the carers, such as: are they being looked after and, if so, by whom, and contact, that is for further assessment, only with the mother. Of course, the submission had already made it clear - the recommendation had already recognised - that the mother was in effect estranged or separated from the children. So that, in our submission, is not a sentence which truly draw to attention the very clear statement by government as to what was intended in relation to the children's carer.

The response, which is referred to at the foot of page 95, is the letter at 67 and, omitting the contact details which have supplied for the carers, adds the further material by way of submission. We do not criticise or complain about that. However, it compounded what was no doubt inadvertent at the foot of page 95, namely the Minister was not told that we were given the contact details by someone who responded to a letter that said we were going to use those contact details in order to assess things and we did not do it.

GLEESON CJ: Does the point of principle come to this, Mr Walker, that if an administrative decision-maker states an intention to pursue a certain line of inquiry which may have been beneficial to the person affected and then, without notice to the person, changes his or her mind about pursuing that line of inquiry, that amounts to procedural unfairness even though the person affected has not done or failed to do anything in reliance on that representation?

MR WALKER: Using "reliance" to describe an actual psychological state, that is of belief on the strength of which act or omission follows, yes, your Honour.

GLEESON CJ: What difference does it make that the decision-maker has indicated that intention? What if you were simply able to point to something that the decision-maker might have done to the advantage of the person affected but did not do?

MR WALKER: It is the difference, your Honour, between fairness and quality. That is, the quality of the decision making could be argued to be enhanced or detracted from regardless of whether there had been a prior announcement of steps which should be taken and were not.

GLEESON CJ: That is right. Your argument seems to get very close to a merits argument.

MR WALKER: That is as to the quality. The reason why I differentiate between fairness and quality is that a pure quality argument, unless it could partake of a Wednesbury attack or perhaps a failure to take into account relevant considerations, would not avail, then what your Honour raises with me must surely follow. It does not matter where there has been the prior announcement and it therefore does not matter if there had been a reneging of it subsequently.

GUMMOW J: It has never been determined here yet that Wednesbury unreasonableness, whatever it is, goes to jurisdictional error. We have decided that natural justice does but, having done that, taken that step, it seems to me one has to be fairly careful lest natural justice becomes so elastic that jurisdictional error becomes far too elastic.

MR WALKER: Yes. I make it quite plain - my reference to - - -

GUMMOW J: ..... de facto one is getting into the AD(JR) Act when one really should not.

MR WALKER: First of all, the AD(JR) Act should not drive 75(v). Your Honour is not suggesting it should. In our submission, I am entitled to put that to one side even though remarking the different difficulties that might arise. Second, I raise Wednesbury only in order to attend to the first half of my answer to the Chief Justice's question. That is, there is a difference between fairness on the one hand and quality on the other. As to quality of decision making, leaving aside the possibility of Wednesbury unreasonableness or some supposed requirement of rationality about which I make no submissions in this case - they do not inform my argument - one could simply say that it obviously then would not matter what you say in advance about your decision-making process or the fact that you unannounced depart from it. The quality would be either good, bad or indifferent, depending upon what you actually do. That is if one focused on quality from the point of view of the content of the material before you to be considered and your ratiocination upon that material.

However, in our submission, the jurisprudence of procedural fairness does not concentrate upon quality in that sense. Indeed, it is to be distinguished from it. It concentrates not upon the material as to its completeness or extraneousness before the decision-maker, nor upon the quality of the ratiocination upon it, but rather upon what I will call the standards of decency as to dealing with government as to matters that are important to the person affected by reason of either the prior elaborate publicly enunciated form of decision making, classically a statutory procedure, or by reason of what I will call core values of decent dealing so that people are not tricked, that is by being stopped in an argument as if they had succeeded in it and thereafter they losing on that argument.

CALLINAN J: Mr Walker, is it very different from a judge who says to an advocate, "There's no need to go into those factual matters. I'll read the affidavit."?

MR WALKER: It is different but, in our submission, there is this analogy with the judicial position. That is a very dangerous analogy obviously between judicial fairness and administrative fairness and I do not at all - - -

CALLINAN J: I am talking about an actual hearing. Your client is having a hearing of a form here.

MR WALKER: Administratively, yes, your Honour.

CALLINAN J: An administrative hearing. Are the rules any different with respect to representations, if I can use that term, made by an administrator on the one hand and representations made by a judge on the other?

MR WALKER: At fundamental level, no, they are not. That is, in both cases they are to be taken as representations to which the Tribunal should be held.

CALLINAN J: As to the way in which the matter is going to be conducted and what may be accepted and what may be assumed and what needs to be pursued by the persons entitled to the hearing.

MR WALKER: Yes. In our submission, in a court case, certainly an investigation of the way in which an appeal would be run suggests that it is not the law that you have to seek to adduce, by leave it would be only, fresh evidence in the Court of Appeal as to what you would have said had the judge not stopped you on a point. In order to succeed on a Steed's Case point, namely I was stopped, the appellate Bench knows that that means you are not going to lose on that ground and then, if you do lose on that ground, in our submission, the appeal point is made good. That is an appeal point being a breach of the curial rules of procedural fairness.

GUMMOW J: Yes, but you say what you would have said.

MR WALKER: In the appeal court, yes. The fact that one does not have that opportunity here, your Honour, is really one of the - - -

GUMMOW J: You had it here.

MR WALKER: Except, your Honour, that involves the proposition - - -

GUMMOW J: I know you say the nature of the case is that it does not emerge.

MR WALKER: That is right, that we could have said something about those things which, ex hypothesi, we were not being asked about. In our submission, there is part of the unfairness. To return to my answer to the Chief Justice's question, in relation to the matter of fairness, first of all the book is not closed on the way in which something may be unfair. That is, there may be a departure from what I will call convention, as in the case of curial lapses. There may also be a departure from a specific dealing set up between the parties. In the paradigm case that will be, "You need not tell me any more about topic X, I'm with you on that", and then being ruled against on topic X where the applicant will say, "I had more to say about topic X". Our case is different from the paradigm case for the reasons I have already developed.

In our submission, one of the ways in which this Court will evaluate whether something has breached the rules of procedural fairness will be to apply a test of decent dealing and to ask whether or not, looked at objectively, that is by this Court as the judicial review court, there has been a lapse or shortcoming below the appropriate standard of open, fair dealing between official and affected person. In our submission, it is axiomatic not as to the quality of the decision in the sense I have explained that but as to the fairness of the process that there is a lapse below that standard when somebody says they will do something towards the decision and does not without giving the person who obviously in this case actually believed it would be done - see 67 - without giving them the opportunity to consider the implications, whatever they may be - and that never happened in this case, so it is purely a hypothetical - of somebody having said they wanted to go to the carers to assess the children's relationship, then saying they were not.

HAYNE J: You proffer no range of possible courses that might have been pursued.

MR WALKER: I can speculate, your Honour.

HAYNE J: Just so, and that is all you may do.

MR WALKER: That is why I have used that word, yes.

HAYNE J: But there is no evidence that would permit a conclusion about what might have been done or could have been done in this case by this man had he been told.

MR WALKER: That is right. That comes about because of the nature of that which was said to be the proposed course by the decision-maker. Your Honour has, however, grasped the position entirely accurately. That is, I can speculate or, as your Honour fairly says to me, I can only speculate. I need to make that very clear if necessary against myself. As I think I have already said in answer to the Chief Justice at an earlier stage, we do not say that we were not given the full opportunity by the initial exchange of request for submissions and the lodging of submissions. We do not say there was anything deficient in the submission we put forward. That is, we do not say as to the nature of the relationship with our children that we were denied the chance to say those factual argumentative or affecting things which we wanted to say.

HAYNE J: The essence of them being, "The children are my life. They are all I have. If I am taken away from them, that is extremely disadvantageous".

MR WALKER: To them, yes. Your Honour is right. There are matters of his own plight raised in the submissions but they are not to the point at the moment. Most importantly, there were full submissions where we do not complain about any deficiency of opportunity. There were full submissions put about the importance to them as he perceived it of his relationship with them as indicated by the phases or periods during his sentence when he was on home detention and work release. There is no doubt that he had put what he wanted to put on those topics. Now, that is one of the reasons, a practical reason, why what, I think, all of your Honours have taxed me with does not produce anything other than speculation.

GUMMOW J: It is not inevitable that he would lose the children - that is what I do not quite understand - by going back to Vietnam.

MR WALKER: No, it is not. Page 97, paragraph [32], on a point that your Honour Justice Gummow asked me about earlier, having in paragraph [30] referred to the submission about the possibility of the children staying in Australia to be cared for by the State, in paragraph [31], the decision-maker says - and this is the position in which it was left:

It is not known if the children currently speak any Vietnamese however given their relatively young ages and the fact that Mr Lam was born and raised in Vietnam until the age of 14 they could be expected to acquire a new language with relative ease.

Now, there is a number of concepts in there. First of all, as your Honours have observed, it is not in the factual record that the children do not speak any Vietnamese. That is not in the factual record. The concept in [31] seems to be if Mr Lam could acquire a new language - English obviously - so they could acquire a new language - idiomatic Vietnamese, obviously.

Now, were this judicial review at large, there might be criticism of that reasoning. It suffices for the purpose of my present argument simply to observe that it is the kind of matter concerning relationship with father that is the language they actually use, and the like, which could have been but was not investigated by the further inquiry the Department said they would carry out.

McHUGH J: Mr Walker, as would be fairly obvious, I have great difficulty with Teoh's Case for a number of reasons, but before Teoh it could safely be said, I think, that legitimate expectation had been invented to give a right to challenge a decision. Legitimate expectation was an aid for standing. Hitherto, one had to have an interest of some sort but it was then said if you have a legitimate expectation, not an interest or a right, to have your licence renewed, then you are entitled to procedural fairness. But Teoh seemed to me to take it to a new level. Rather than it being a ground that went to standing, it itself became almost an evidentiary ground which would invalidate the decision. Nobody suggested that Mr Teoh could not challenge the decision but the failure to tell him that they were not going to take into account the best interests of his child as a primary consideration was regarded as invalidating the decision. Here, all the Department said is that they wished to contact the children in order to assess the relationship with the children.

MR WALKER: I think to be fair, it says "the carer". It says they want to "contact them" which is ambiguous. Whether it is the carers or the children may not matter because that is to be assessed as the relationship with the children. One supposes that would involve the children more or less directly.

McHUGH J: But it is "to assess your relationship with the children". Now, it does not seem to me that there is anything that your client could say in respect of that at all.

MR WALKER: He had already said a lot of stuff, all of it from his point of view, as it had to be. He could not - I am repeating myself. We do not complain that he was denied an opportunity to add something new or different from his point of view.

McHUGH J: But it really does seem, as the Chief Justice put to you, that the proposition is that if a decision-maker says that he will investigate a matter and he does not do it, then there is a failure of procedural fairness.

MR WALKER: That is right.

McHUGH J: That is a very large proposition, notwithstanding - - -

MR WALKER: Well, it is simple and plain.

McHUGH J: Well, I know. It is not too simple and plain to me. I mean, I have long held the view the law went wrong once you start to embrace this rubric of procedural fairness in substitution for natural justice which was a defined - - -

MR WALKER: Your Honour, I am perfectly content to use the older expression, "natural justice".

McHUGH J: You would be in a little trouble then. It was a hearing rule and a bias rule.

MR WALKER: Yes, but hearing, your Honour, cannot and has not for a long time been capable of being seen as being literally described as a hearing. The metaphor of "hearing" is only a metaphor when it comes to administrative dealings. One may deal through correspondence.

HAYNE J: A sufficient opportunity to put - - -

MR WALKER: To make representations.

HAYNE J: - - - what is needed to be put.

MR WALKER: Yes.

HAYNE J: In what respect was he denied that?

MR WALKER: Your Honours, may I once and for all concede it. He was not denied any opportunity. If I measure it by what he put in, no complaint. If I measure it about the amplitude of an invitation to put in material, no complaint. If I measure it by what could he have said had he been told before the decision, "Look, we don't have time. We don't have enough officers" or, "On reflection, we don't think it is going to help. We are not going to be in touch with the children's carers or their mother", then I do not say that he could have said more on his account from his perception than he already said.

McHUGH J: Would you be urging that the decision was invalid if the Department had said nothing but just did not, as turned out to be the case, fail to make contact with the carers?

MR WALKER: I think my answer to that has to be no.

McHUGH J: So, it comes to this then, that if you say you will do something and you do not do it, that is a breach of the rules of procedural fairness?

MR WALKER: When it is a critical factor of what you say about a critical determination in a case which of its nature is a weighing case.

McHUGH J: But why can it be critical? If the fact that you do not bother to do it all cannot be critical, why is it that you say you will do it?

MR WALKER: But, your Honour, when you say the fact that you do not do it at all - - -

McHUGH J: Not if you do not say anything at all about it. I thought you just conceded a moment ago - - -

MR WALKER: That which is critical is the topic, namely detriment to the children. Whether or not you contact the children's carers I could not possibly, on authority, describe as critical. That is, I could make an argument in another place, namely to an administrator that the quality of the decision making would be enhanced by doing so, but as to a freestanding obligation to make reasonable inquiries, I am in difficulty jurisprudentially to say that there was an enforceable duty which was breached in this case. Rather, I have a highly particular, very specific, definitive and categorical statement that it would be done; something by way of further inquiries. This is what distinguishes this case as to further inquiries from each, say, of Teoh and Foster. But here it was said it would be done. There was no question of the judicial arm therefore being concerned about imposing its own standards of adjudication or fact finding on administrators. There is no logistical problem.

There is no evidence as to why they decided not to do it. There is no reference to their failure not to do it. Indeed, query whether the Minister even knew that there had been all the material supplied for the assessment to go forward as decision-makers - that is the recommenders advising him - had determined.

GLEESON CJ: Well, a possible point of view - to paraphrase a proposition from the law of contract - is that an unrelied on representation is a thing writ in water.

MR WALKER: Yes, that is a possible point of view, your Honour. This case certainly raises for consideration whether or not there are sufficient analogies with representational causes of action in tort, most species of estoppel, so as to give rise to a requirement of what I will call actual psychological belief, on the basis of which specified acts or omissions took place. In our submission, it would be a misstep and error for this Court to confine administrative law, in relation to the procedural fairness aspects of natural justice, in that fashion.

McHUGH J: Supposing, on 8 November, the Department had sent a letter to your client saying, "Do not worry about that letter we sent you yesterday. We have changed our mind. We do not now wish to contact the carers". Would you still have a case?

MR WALKER: No. I would no more have a case than if Mr Teoh had been notified of the matter that the Court said he should have been but was not notified in that case.

CALLINAN J: But at least you would have had the opportunity of making a submission - - -

MR WALKER: Of whatever - - -

CALLINAN J: - - - that they ought to go ahead, as first representated.

MR WALKER: Yes, your Honour, and considering hypothetically - because you would need to see the terms of the reply, you would need to see the reasons why it was reneged. You would need to consider things like how quickly it was done, or whether a different person signed the letter. All those things are hypothetical, and so are speculative. Indeed, the admissibility of evidence from my client about such hypotheses or speculations is to be doubted. In my submission, what is clear is that the decision-maker set a perfectly reasonable and fair course, and did it definitively and categorically. Now, it is a bit like saying, "Before I make my decision, I will give you it in draft, notwithstanding that you have now told me everything that you wanted ever to tell me". Then the draft is not promulgated, and a final decision is announced. Now, from the point of view of the quality of the decision making, who is to say that you could ever, in a court, demonstrate that there had been the slightest detraction from quality in failure to make available a draft. But from the point of view of fairness - - -

GUMMOW J: The AD(JR) Act has a goal: improving quality of decision-making.

MR WALKER: Yes, but by - - -

GUMMOW J: Not 75(v)'s goal.

MR WALKER: No. However, the jurisprudence which is enforced among other things, is enforced by 75(v), does include a requirement for what I will call a modicum of decency in decision making, that decency specifically being procedural fairness. Now, your Honours, you could take a functional view of procedural fairness - that is, it enhances the quality of decision-making as to outcomes - but, in my submission, that would - - -

McHUGH J: Well, the Executive regards that proposition as close enough to laughable.

MR WALKER: Well, I was about to suggest that this Court should perhaps put that in a "yes, but" category - that is, it would not carry a lot of weight. In our submission, there is in fact a more important reason for the requirement of procedural fairness, and that is that there be, to the extent that the judicial arm can ensure it, a retreat from arbitrariness. Arbitrariness includes the prior dealings between the affected party and the person who was making decisions.

McHUGH J: The major complaint of the Executive is that it is not the decision that is wrong, but some alleged defect in the formal process, which then sets aside the decision. But you do not have any different result in the end, except cost and inconvenience.

MR WALKER: But, your Honour, it is perverse for apologists for the Executive to complain about that being the fact. How much worse would it be if outcome could be directly, on the merits, attacked? There are major constitutional reasons why that simply is to be seen as a no-go area. It ought to be a matter of comfort, not distress, for the Executive, that matters of process are the focus in judicial review, rather than matters of outcome. In our submission, this is a question of process. It may be assumed, for the purpose of my argument, that in the weighing exercise, his conceded failure of the character test, the contested, but nonetheless open finding in relation to recidivism, were going to outweigh the affecting plight of his daughters who, after all, have clearly not been living with him for most of their lives. All of that may be accepted. We call that in aid to leverage up the importance of that which they said they were going to do.

HAYNE J: Now, it was not done, for reasons we do not know and into which, perhaps, we cannot go, but let me speculate a moment, with a view to testing what you mean by "unfairness". It may be that the administrator said, "This man has put his case at its highest and best. Nothing that is advanced by the carer can put it any higher or better". It may be the administrator says, "We have no resources, or we have better use for our resources than this". It may be the administrator says, simply, "We have changed our mind. It may be we have changed our mind because we do not think the inquiry sufficiently useful, whatever - - -

MR WALKER: Some area of diminishing returns, yes, your Honour.

HAYNE J: Yes. Now, if there is unfairness in any of those answers, where does it lie, unless there has been a consequent denial to the applicant of an opportunity that otherwise he would have pursued?

MR WALKER: The "otherwise" is in the case where he is informed before the decision of a change of course, and, had he been informed before the decision of a change of course, then the highest I can put it - adapting a matter about which I was asked by Justice Callinan this afternoon - is that he would have had a chance of considering matters which are presently not known: that is, the reasons for the change of course, the person who made the change of course, the time at which it was made, and any other circumstances.

HAYNE J: The unfairness lies in the denial of opportunity to consider what he would do in response.

MR WALKER: And what - - -

HAYNE J: Does it come to that?

MR WALKER: Yes, your Honour, including any consequential step that he may have taken, all of which, alas, lies in the realm of preparation. Evidence about it would have to first speculate about the terms, timing and identity of the person who made the decision.

GLEESON CJ: Could I get one aspect of the facts straight, Mr Walker. Am I right in thinking that in between the letter on page 65 and the final decision, one of the things that occurred was that your client disclosed to the Department that the way he came to be involved in this drug dealing was that he had incurred a large debt to some Chinese gambling interests - - -

MR WALKER: Your Honour, I think that is - - -

GLEESON CJ: - - - and that he was trying to work it off.

MR WALKER: That certainly is disclosed, but I think that may have been disclosed - at least, as to elements of that - beforehand, your Honour.

GLEESON CJ: I am interested in that because it is another possible basis of speculation on the subject of recidivism, because it may be that the people to whom he was indebted do not faithfully observe the Statute of Limitations.

MR WALKER: Yes. It is certainly a possibility, your Honour.

McHUGH J: Well, he told people, did he not, that - - -

MR WALKER: He was going to be able to pay it off, and they were very understanding people - - -

McHUGH J: Well, yes, that was one of them.

MR WALKER: - - - and they were helping his children. That is in the record. I think that is what your Honour the Chief Justice has in mind.

GLEESON CJ: I was not clear in my mind when that came in. Justice Derrington did not know about it, for example.

MR WALKER: It is the same day, I think, your Honour.

GUMMOW J: Page 68, there was an interview - - -

MR WALKER: Date of interview on 7 November, yes.

GUMMOW J: Which is the same day. At page 78 - - -

GLEESON CJ: None of this emerged, as I recollect, at any sentencing proceedings.

MR WALKER: No, it does not.

GUMMOW J: Line 35 - - -

MR WALKER: I am sorry, your Honour Justice Gummow. Which page?

GUMMOW J: Page 78, line 35.

MR WALKER: Yes. This is not a plea in mitigation, obviously enough. The line appears:

He emphasised that he does not use drugs, and that he was only to benefit financially.

GLEESON CJ: I understand that, but it just occurred to me, as a factual possibility, that one of the reasons they might have changed their minds about interviewing the carers was that, after they wrote that letter, they became aware of the full circumstances in which he came to commit this offence, which were circumstances that did not hold out a great deal of prospect for change of course.

MR WALKER: Your Honour, outside court, with great respect, I would describe that as a fair speculation. In court, however, it is merely a speculation. Its reasonableness must be conceded. In our submission, it only heightens the importance of carrying through, or at least saying, you are not going to carry through, by reason of something fresh, not hitherto the subject of dealing concerning the children, on what you had previously assured him would be done, namely, assess the relationship with the children.

In other words, this being a sufficiently desperate exercise of balancing or weight, from my client's point of view, at the outset - after all, failing the character test, the particular kind of offence is obviously serious, the sentence, even after sizeable discounts, is a relatively long sentence. Clearly, it is a very poor start to the persuasive exercise in relation to the Minister's statutory discretion. All the more reason that those matters which are not peculiar to him, indeed, are not capable of being supplied by him - namely, other persons' input - perhaps his children's own input, in relation to an assessment of his relationship with them - be carried through, as a matter of fair dealing - the decent dealing which, in our submission, is at the heart of procedural fairness.

Your Honours, I had, I think, virtually concluded what I wanted to do by way of showing you the record. On page 97, after the reference to linguistic acquisition in paragraph [31], the same thing is said about cultural matters in [32]. These are adapted from a ministerial direction, which do not bind the Minister himself, which the Minister was urged he might find useful to consider. The checklist he has gone through - we do not complain about the checklist form of it, at all.

The conclusion is therefore simply, in [33], that "it was open" to the Minister to find that "his removal from Australia may have a detrimental effect on" Mr Lam's children - a conclusion which is the reason - it is bland - I do not criticise it for that, it is necessarily bland language - is the reason why I answered your Honour the Chief Justice's early question, namely, query, to what extent you can infer full acceptance of the submissions paraphrased, referred to and extensively quoted from in the recommendations, given that that is the bottom line. "May", for example, seems to be an arguable position but one which certainly does not accord with what falls out from submissions on behalf of Mr Lam.

It may fall out from other considerations, from other points of view and, perhaps, broader points of view, but it does not fall out from an acceptance of Mr Lam's submission, that it is simply only a possibility of a detrimental effect. His submissions added up very squarely to the proposition that it would have a decided and relatively permanent detrimental effect on the children. Now, I need to draw to attention that the letter requesting the details is contained by way of annex - see 97, line 43. That is out of fairness, bearing in mind that I have criticised what I suppose to be the inadvertent material at the foot of page 95, where there was an incomplete paraphrase of what that letter did.

Over the page, on 98, your Honours see - and this has to be conceded as weighing in favour of Mr Lam, albeit under the heading of "Other Considerations". In paragraph [36], there is a very extensive quotation from a letter from his father, the foot of which, lines 30 to 35, contains the kind of material which obviously falls in the category of what I earlier called affecting - the nature of which could be greatly enhanced for a balancing exercise by the kind of assessment which the letter at page 96 had said would happen. The same is true, to a slightly different extent, in the material from his fiancee, at the foot of page 98, line 45 and following, a reference at line 52, "fatherly dedication", and, most importantly, 54, 55, "missing their father terribly", and the absence of the mother. Your Honours, that is the basis upon which, in our submission, simply and solely - - -

HAYNE J: Sorry, just before you depart from this document, when did the letter from the carer, which is quoted at 99, lines 12 and following, come in? At what stage in the process?

MR WALKER: It had come, I think, your Honour, with my client's submission on 30 October.

HAYNE J: Thank you.

MR WALKER: Yes. So that was already with them when they made the request, your Honour. The reference, I think, to that is at - the reference to that being attached is at 41, line 40, item 5. Letter from the carers of the children. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker.

(At 3.35 pm the hearing was adjourned to allow the mention of Brogdan & Ors v Commissioner of Police Service)

UPON RESUMING AT 3.35 PM

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, I find myself in the unusual position of my learned friend having said by way of concession almost everything I was going to say by way of argument. The letter - - -

HAYNE J: You should be so lucky.

MR GAGELER: I am not complaining. The letter of 7 November at page 65 of the application book, upon which he places the full weight of his argument, must be put in context, and, of course, must be put in the context of the letter of 19 September, at page 32 of the application book, which was the notice of intention to cancel the visa which, at page 33, identified at lines 10 and 24 that the matters to be taken into account include the best interests of the children, and, at line 46, stated that the Minister or the delegate would be likely to have regard to the Minister's direction, a copy of which was enclosed. The direction itself your Honours will find at page 120 of the application book. At pages 133 to 134, that direction spells out the best interests of the children as one of the primary factors to be taken into account, and, indeed, teases out the concept of the best interests of the children into a number of elements. That letter then invited submissions by 11 November 2000 - that is at the top of page 34. A response was made to that letter, the response appearing at page 35, a letter from the applicant to which there was attached a submission of the most extensive kind. The submission, beginning at page 36, refers extensively to the children, particularly page 38, paragraphs 27 through to 32.

GLEESON CJ: But it appears, from page 37, that at that stage, he raised the gambling matter.

MR GAGELER: At paragraph 18, yes, your Honour. That was taken up in later correspondence, but it was raised at that stage. That is correct, your Honour. There are then some submissions as to character at page 39, but at page 40, the children are returned to at some length, and then at page 41 - - -

McHUGH J: Well, he has been a bit inconsistent about paying the money. At page 37, paragraph 18, he said: "I had to work for those to whom I owed money."

MR GAGELER: That is right. There are all sorts of problems. I am focusing on the children. Yes, your Honour. Page 41 then refers to a number of annexures, and your Honours will see noted as annexure 5 is "Letter from the carers of the children", and that appears to be the letters that one sees at page 110, which is a letter from Ms Tran. Ms Tran swore the affidavit that your Honours would see also at page 137, and then at page 111, there is another letter, that goes over to page 112, which refers, at 112, line 20 and following, to the children. So that was the extensive submission that was provided.

One then gets to the letter of 7 November, at page 65. The most that one can spell out of that letter is a present intention on the part of the Department to contact the children's carers in order to assess the applicant's relationship with the children. Now, that letter comes after the issue of the best interests of the children is squarely raised as an issue upon which the decision would be likely to turn - after which, the applicant says everything that he wished to say on that topic, and in circumstances, according to one of the concessions, as I understand it, there was nothing further that the applicant could say that would have come out of that contact actually being made or not made, as the case may be.

HAYNE J: You used the expression, "present intention" of the Department, that I should warn you is an expression that has an unhappy history in takeover connections. But what was the weight that you were seeking to attach to the use of that expression? Are you saying it changed?

MR GAGELER: I accept that it was not fulfilled. That is all.

HAYNE J: Nothing more than that.

MR GAGELER: And nothing more than that, your Honour. So I hope I have not waded into an unnecessary takeover hitch.

HAYNE J: Note that "present intention" used to be measured in nanoseconds in Part A statements, and so forth. But there we are.

MR GAGELER: No, well, I will not go there, your Honour.

GUMMOW J: Now, Mr Gageler, this direction you took us to at page 120, that has its root in section 499, does it not?

MR GAGELER: That is correct.

GUMMOW J: And section 499(2A) seems to make compliance mandatory.

MR GAGELER: For delegates, yes, but not for the Minister, of course.

GUMMOW J: Not for the Minister.

MR GAGELER: Not for the Minister. That was recognised, your Honour, when one gets to the decision, which begins - the decision record begins at page 85. Page 87, in paragraph [5], makes reference to the direction.

GUMMOW J: Sorry, page 87?

MR GAGELER: Page 87, paragraph [5], about line 12.

GUMMOW J: Yes, thank you.

MR GAGELER: He refers to it as "a useful guide".

GUMMOW J: That could be important, because, in fact, it was not fully complied with.

MR GAGELER: It was used, at most, as a guide.

GUMMOW J: Yes. There is no consideration of the circumstances of the probable receiving country, including educational facilities, et cetera.

MR GAGELER: Well, your Honour, there is some reference. There is reference to educational and health facilities - page 97, line 17. There is some reference; not extensive reference. Indeed, what one sees is that the structure of the discussion of the best interests of the children, it appears at page 94 through to 97, is very much based on the teasing out of the best interests of the children that one sees in the direction. Indeed, elements of the direction are taken and the information - - -

GUMMOW J: Language barriers for the child in the probable country of future residence.

MR GAGELER: Yes, page 31, language. At paragraph 31, I am sorry. Page 97, line 30.

GUMMOW J: That is.....in compliance with that.

MR GAGELER: Those things - - -

GUMMOW J: We do not know what languages they can speak, to start off with?

MR GAGELER: No, but they are young. The point being made there is that they are young, and if they were to go back to Vietnam - the applicant was saying, they would be left in Australia if he were deported - - -

GUMMOW J: Anyhow, I do not think it really matters, because your point is that it is not mandatory when it is the Minister.

MR GAGELER: Yes, that is right. I stand by the point made in paragraph [31], your Honour. They are young children, and young children pick up languages.

GUMMOW J: Yes. Well, whether they have to pick it up, is the first question. Whether they have it.

MR GAGELER: And that is also noted there. Not very much turns on that, because, as the case has emerged, the argument based on failure to take into account a relevant consideration has fallen away. All we are concerned about is an argument based on the rules of natural justice, and that argument comes down to the proposition that if a decision-maker says that he or she is going to undertake an inquiry, then natural justice or procedural fairness requires that inquiry to be undertaken, or, if not, that at least an opportunity to make further submissions be given. As I understand it, that is really the proposition it comes down to.

In our submission, what the authorities in this Court up to and including Teoh - and, indeed, beyond - have made clear is that procedural fairness is another label for natural justice, which relevantly translates to, in this context, the hearing rule - that is, that a person whose interests are likely to be affected by a particular exercise of statutory power is to be given notice of the decision to be made, and to be given notice of the issues upon which the decision is likely to turn, and a reasonable opportunity to present his or her case on those issues.

GUMMOW J: I do not see how you can express the outcome in Teoh in those terms.

MR GAGELER: Well, it fits in this way, that - - -

GUMMOW J: With some pushing.

MR GAGELER: Pardon, your Honour?

GUMMOW J: With some pushing.

MR GAGELER: Teoh goes the furthest in my learned friend's direction, of any of the cases, although he expressly disavows any reliance upon it. Teoh goes so far as to say that an issue may arise by virtue of a legitimate expectation - I have put that very badly - but a substantive issue upon which a decision may turn may arise by virtue of a legitimate expectation. I have again put it badly, but the point about Teoh is that it was concerned with the substance of decision making, not with procedure.

GUMMOW J: I know, but what makes the expectation legitimate? If ever there is a frame of circuitous reference, it is that. What is it that makes the expectation legitimate?

MR GAGELER: In that case, it was said to be reasonable - - -

GUMMOW J: "Legitimate" meaning required or sourced in law, as a matter of right, I guess.

GLEESON CJ: "Reasonable", they say, do they not?

MR GAGELER: It was said in Teoh that a legitimate expectation is a reasonable expectation.

GLEESON CJ: And that was contrary to what Sir Garfield Barwick had said.

MR GAGELER: Yes, although it is difficult for me to attack directly Teoh, in these proceedings, given that Teoh is not being relied upon by my learned friend. Your Honours, the proposition upon which he relies is not supported by any of the cases in this Court, and it is directly contradicted by the decision in Quin (1990) 170 CLR - - -

GLEESON CJ: Say that again, please.

MR GAGELER: Attorney-General (NSW) v Quin (1990) 170 CLR 1. Can I take your Honours to just one or two passages in that. Particularly, I wanted to take your Honours to the judgment of Justice Brennan in Quin. At the bottom of page 35, your Honours see the passage that has become very familiar in his Honour's judgment, immediately after the reference to Marbury v Madison. That passage is then introductory to a reference on page 36 to Wednesbury unreasonableness, and, across page 37 and page 38, leading into a discussion of procedural fairness.

GLEESON CJ: Does that passage at the bottom of 35, on the top of 36, depend upon a view of administrative review that involves and involves only making administrators conform to the statute that they are administering?

MR GAGELER: Essentially, yes. To the legal requirements that mark out the boundaries of their power, yes, or that regulate its exercise. His Honour specifically discusses legitimate expectations at pages 38 and 39. I will not read the entirety, but to pick up a couple of highlights, the middle of page 38 about point 6 there is a sentence:

To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism.

Indeed, the entirety of those few pages is useful. I will not read it. At page 55 in the judgment of Justice Dawson there is a paragraph that begins at about point 2:

It is when the expectation is of a fair procedure itself that the concept of a legitimate expectation is superfluous and confusing.

And across the page at page 56 there is a further paragraph referring to the decision of the Privy Council in Attorney-General (Hong Kong) v Ng Yuen Shiu. The entirety of that paragraph is of some importance.

I draw Your Honours' attention to that case in particular because the question was asked about the position in England, by reference to the Nursing Home Case. That is usefully discussed in Aronson and Dyer, Judicial Review of Administrative Action, second edition at page 333, where two points are made. The first is that the Nursing Home Case, which is Ex parte Coughlan, a case decided in 1999, is itself - - -

GUMMOW J: What is the citation?

MR GAGELER: I think - it is only in the Lloyd's reports which your Honour may not find helpful, but it is 1999 Lloyd's Rep Med 305. I am sure it is in an authorised report now. Two points are made. One is that it is a controversial decision even in England, and inconsistent with some other Court of Appeal authority, that is one point. Secondly, that it stands in contrast to the position as expressed in Australia in Quin's Case.

GUMMOW J: In what?

MR GAGELER: In Quin, the case I have just taken your Honours to. It appears to be out of step.

GLEESON CJ: Teoh was followed in an English decision in which Lord Woolf was a member of the court. Was that Coughlan?

MR GAGELER: No, that was another case. It is a case called Ex parte Ahmed. It is referred to at page 329 of the same work - again, a particularly unhelpful unauthorised report. I can give it to your Honours if - - -

GUMMOW J: What is it?

MR GAGELER: It is 1998 INLR 570.

GLEESON CJ: And then there is some suggestion that it was surprisingly unmentioned in a decision of the Supreme Court of Canada.

MR GAGELER: I do not know about that.

GLEESON CJ: There is an article in some journal called "The Dog That Didn't Bark".

MR GAGELER: I see. My learned friend, no doubt deliberately, said that the circumstances of this case and the argument that procedural fairness was denied was very similar to a case in which a decision-maker might say, "I will give you a draft before I publish my decision" and fails to do it. He no doubt had in mind a particular decision of Justice Wilcox which, interestingly, was part of the proceedings at first instance in the case that made its way up to this Court as Wu Shan Liang. Your Honours, I hope, have a booklet called "Bundle of Authorities". In it, behind tab 2 is the judgment of Justice Wilcox in that case.

What happened, and your Honours can pick this up from page 233C, is that his Honour's judgment was handed down in two parts. This is the second part. It was the first part that was the subject of the appeal to the Full Court of the Federal Court and then eventually to this Court. This part dealt with an allegation that there had been a failure to accord procedural fairness precisely because the decision-maker had said that a draft of the decision would be made available, and that did not occur.

At page 238, after discussing the authorities including Quin, your Honours will see that about letter D his Honour was prepared to approach the case on the basis that the expectations of those affected were legitimate and that they had been disappointed. But he went on at letter E, and following to the top of page 239, to say that accepting all of that at its highest, there was a failure to engage in what might be called the "good administration". It did not amount to a breach of the hearing rule. In our submission, his Honour's analysis is precisely in point and correct.

GUMMOW J: I am not sure I quite understand Sir Anthony Mason's judgment in Quin. There is a discussion of estoppel and then it is rejected. Then there is a discussion of legitimate expectation that seems to be distinguished from procedural fairness. Then it is said, "legitimate expectation is a sound offering". Then it is said, "but it is limited to procedural outcomes", if you like.

MR GAGELER: Yes.

GUMMOW J: And the English cases he disagreed with. So you seem to have a species of estoppel without a detriment needed to found it, but the estoppel simply being limited to procedural outcomes and it is all tricked out and called "legitimate expectation".

MR GAGELER: But of course his Honour - - -

GUMMOW J: Is that not what is what is happening, as distinct from what is being said to happen?

MR GAGELER: Can your Honour put the proposition to me again? I am not sure if I understood it.

GUMMOW J: Well, you have a form of estoppel with no detriment needed, but the estoppel itself in effect is limited to a procedural rather than a substantive outcome.

MR GAGELER: Yes.

GUMMOW J: Which somehow is then differentiated, treated as independent of procedural fairness. That is what I do not - - -

MR GAGELER: When one takes the next step that there is a problem, if your Honour - - -

GUMMOW J: That is what I do not understand, yes.

MR GAGELER: If a legitimate expectation is one of the factors that is taken into account in determining what the hearing rule requires in particular circumstances, then there can be no quibble with it. If it is taken as an extra step and cut loose from the - - -

GUMMOW J: Yes. It seems to be cut loose and then cut down.

MR GAGELER: I am not sure that that does emerge from Sir Anthony Mason's judgment. If it does, then we would respectfully disagree with it and point out the difference between that and what Justice Brennan was saying in the same case. Your Honour, Justice Brennan, in Kioa v West, [1985] HCA 81; 159 CLR 550 at 627 - - -

GUMMOW J: But did Justice Brennan accept this notion of substituting "reasonable" for "legitimate"?

MR GAGELER: Yes - - -

GUMMOW J: Or for the use of "reasonable" as a ground for not giving any content to "legitimate"?

MR GAGELER: I can see where your Honour is going. At the particular passage that I have referred to - - -

GUMMOW J: The time has come to face them as far as I am concerned.

MR GAGELER: Yes. What his Honour - - -

GUMMOW J: I cannot go on writing judgments about things I do not understand.

MR GAGELER: Yes.

GUMMOW J: And you are here to help.

MR GAGELER: What your Honour will see at page 627 is that he can see some utility in the notion of "legitimate expectation", I think equating "legitimate" with "reasonable" in giving content to the particular - - -

GLEESON CJ: There are some cases that actually say, do they not, "legitimate in this context means reasonable"?

MR GAGELER: Well, Teoh's Case says that, yes.

GUMMOW J: But what makes it reasonable or unreasonable? It is like a jury question. What makes it reasonable or unreasonable?

MR GAGELER: I cannot take it any further than that, your Honour, that it is a jury question.

CALLINAN J: Why is it not unreasonable not to do something that you clearly said you are going to do? You see, I must say I have difficulty with what Justice Wilcox said on page 239, the paragraph at the beginning of that page. He says:

A failure by a public authority to implement a promise to follow a particular procedure is a failure of good administration . . . It does not necessarily follow that the authority acted unfairly towards any particular person.

How can you be acting fairly if you break a promise to make a certain kind of investigation?

MR GAGELER: Your Honour, can I answer that in stages? I will assume for present purposes that we are concerned with a promise.

CALLINAN J: Yes, well a promise - - -

MR GAGELER: I do not accept that that arises on the face of this case.

CALLINAN J: It is probably even a bit excessive in this case, but a representation even.

MR GAGELER: Yes. Your Honour, the rule of procedural fairness is not fair procedures generally.

CALLINAN J: No, but usually when one is talking about administrative procedures, there are no particular rules.

MR GAGELER: Your Honour, there are two very clear rules. One is called the bias rule, the other is called the hearing rule.

CALLINAN J: But not rules in the same sense as there are rules regulating the conduct of an action in a court. In other words, the rules are flexible, the procedural rules, though they depend very much on the nature of the hearing that ought to be accorded and all sorts of other circumstances. So it is difficult to say that any particular procedural rules will apply or not. But if an authority says that it is going to follow a particular procedure, then surely it ought to follow it.

MR GAGELER: Not as a matter of law, your Honour. What the authority is required to do is to ensure that a person whose interest will be affected by a decision is given an opportunity to say whatever the person can and wants to say about it.

CALLINAN J: Do you say that there are no circumstances at all in which an administrative decision-maker will not be according natural justice by saying that a certain process or procedure will be followed and not following it? There is never a breach of the rules of natural justice.

MR GAGELER: No, I do not go that far. If by announcing a procedure and failing to follow the procedure the decision-maker deprives a person affected of an opportunity of putting a case that the person can put and would otherwise wish to put, there has been a breach of the rules of natural justice. That was Aala's Case, on one view it was Miah's Case, it is Steed's Case, but it is not this case.

CALLINAN J: Well, this looks to me like Miah's Case, frankly.

MR GAGELER: No, your Honour. That was another issue arising in respect of which the person affected did not have an opportunity to make submissions. Aala's Case was misleading conduct that deprived Aala of the opportunity of making submissions. That is not this case. Indeed, the applicant has expressly disavowed it being this case. If Your Honours please.

McHUGH J: Before you sit down, having regard to what appears at page 110, the carer's letter, although it predates the letter of 7 November which appears at page 65, do you accept that the Minister is in breach of that representation?

MR GAGELER: Your Honour, one, I do not accept that there was anything more than an indication of a present intention to contact the carers, but - - -

McHUGH J: It says the Department wishes to contact them. In fact, the carers contacted the Minister.

MR GAGELER: Yes, but they had done that - - -

McHUGH J: Beforehand - - -

MR GAGELER: Yes, that was in the possession of the Department.

McHUGH J: Well, maybe. There has obviously been some administrative - - -

MR GAGELER: Yes, probably. It is pure speculation but probably somebody has looked at the file and said, "We already have information from the carers". That is probably what has occurred.

McHUGH J: Yes.

MR GAGELER: If the Court pleases.

GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Walker.

MR WALKER: As to that last point, your Honours, the letter itself at 65 starts off by acknowledging the letter of 30 October and by - - -

McHUGH J: That is to Mr Lam.

MR WALKER: Yes. So that the letter from the person who seeks contact details with the carers comes from somebody who already had the letter containing the earlier communication appended to Mr Lam's submission from the carers.

McHUGH J: But do we know that?

MR WALKER: Yes, from page 41 line 40. That annexure is the one to be found at page 110. The one at page 110 was dated 17 October 2000.

McHUGH J: Yes.

MR WALKER: Now, in fact the telephone numbers supplied on page 110 lines 40 to 45 were the ones eventually supplied, again at page 67; the reply to the letter at 65. But that is not the present point. The present point is what follows the request for contact follows, and that was the statement that my learned friend seeks to downgrade by describing my word "merely" as a statement of present intention. Every promise could be described as a statement of present intention but for the fact that the law adds some other force to it.

The Department wishes to contact them in order to assess your relationship with the children -

following the sentence which used the word "therefore" in relation to the best interests of the children being a primary consideration. It may well be a statement of present intention. One would have thought it is inescapably so, but it is a statement of the present intention extending into a future, looking forward to a future act, which plainly enough was being represented as one which would be carried out. You do not have to add "Deus volt" to every letter from an administrator and, in our submission, you should not be able to construe letters as if they contain a statement at the bottom, "PS: We may change our mind without letting you know." That does not go without saying; that needs to be said. That is the first point.

The second point is this. Your Honours, it is clear enough in Quin that "legitimate expectations" are matters which were not given the final words by this Court as to what they are. Your Honour the Chief Justice, your Honour Justice Gummow, have asked respectively, "How do you know what is reasonable? How do you know what is legitimate?" I think all your Honours have - - -

GUMMOW J: Without getting into merits review.

MR WALKER: Quite. And all your Honours have wondered aloud as it were, "What's the difference between the two, if there be one?" I do not have answers for all of that. However, in our submission, Justice Dawson in Quin 170 CLR 54 supplies an answer which may be, as it were, a dangerous portent of some of the inquiry that might be threatened. Three-quarters of the way down that page, picking up a sentence in the middle:

provided that his expectation of that benefit was -

and then comes the important phrase -

sufficiently based in reason to make it legitimate.

Now, that has the virtue of being a phrase which could be seen as a not particularly helpful but nonetheless related phrase to the word "reasonable". Of course it shifts the inquiry as to how does a court decide whether a basis is sufficient without itself getting into the merits of the case. It raises a question which this case is not apt to conclude because no issue is raised on facts which actually exist about what I will call a minimal standard of logic that would raise the question as to whether there are any minimal standards of logic in decision making.

In Quin's Case what matters for present purposes is not the difficulties in terms of defining what a legitimate expectation is but the relationship between legitimate expectations of substantive outcomes and procedural fairness. I am relying simply upon the way in which that is transmuted or developed, perhaps even departed from in Teoh's Case, namely accepting for present purposes that there was a legitimate expectation, whatever that means, in Teoh, this case is a fortiori as to that first premise, that is here we did not rely upon the international obligation in the ether, being a reasonable basis for an expectation presumably of everybody in the world, that is everybody outside Australia as well as everybody inside Australia. Here we have something far more specific, the letter at 65.

I, therefore, rely in Teoh upon what then follows. That being so, there was invalidity in a decision which proceeded without the position being made clear which was different from what in Teoh is called the legitimate expectation of the international obligation would be observed. In our case, by adaptation, the decision is invalid because there was no prior notification before the decision of the highly specific assurance of administrative assessment conveyed at 65 and understood at 67. Justice Dawson himself does pick up some of the reasoning which we would respectfully adopt, adapt and urge in this case, on pages 55 and 56 of the otherwise quite distinctly different case of Quin; distinctly different of course not only as to its outcome but as to the nature of the expectation and as to the conclusion in relation to hearing rules. In the middle of page 55 an important paragraph commences:

It is when the expectation is of a fair procedure itself that the concept of a legitimate expectation is superfluous and confusing.

We would respectfully submit that accordingly we go further in this case than of course of simply pointing out a legitimate expectation of a fair procedure. We point out something different, namely the legitimate expectation that the government would do what the government said it was going to do; lent legitimacy or, if need be, reasonableness by two facts. One, the nature of the dealing being between an official and an affected person with an important statutory decision. That is a familiar consideration because that is the basis of the common law requirement of natural justice in any event. Two, the fact that the government said so. That makes it reasonable, legitimate.

GLEESON CJ: As I understand your argument, if the Department had never said anything about interviewing the carers, fairness would not have required that the carers be interviewed.

MR WALKER: I am bound, I think, to concede that, your Honour.

GLEESON CJ: And also, if the Department had notified your client that they had changed their minds about interviewing the carers, fairness would not require that the carers be interviewed.

MR WALKER: That is right.

GLEESON CJ: So the requirement of fairness embraced the need to interview the carers for no other reason than that is what the Department said they intended to do.

MR WALKER: Yes, that is we may leave aside in this case the bizarre or extreme possibility of a government assurance that something would be done which was not at all calculated to assist in making the decision. That would raise quite different questions. It does not arise in this case at all. What your Honour puts to me is my argument, yes.

At page 56 in Justice Dawson's reasons there is criticism of one of the several Hong Kong cases in this area. Having quoted from the judicial committee's opinion, in particular the justification being:

"primarily that, when a public authority has promised to follow a certain procedure -

this is point 5:

it is in the interest of good administration that it should act fairly and should implement its promise -

et cetera. His honour then proceeds in a passage which is reminiscent of a matter that I put in-chief:

Good administration cannot of itself offer a sufficient reason for the imposition of a duty to observe fair procedures and the justification must ultimately rest upon fairness itself in all the circumstances.

That is what I have tried to elaborate to your Honours by the admittedly not very elaborate formula of decent dealing.

It adds nothing to say that there was a legitimate expectation, engendered by a promise made to follow a particular procedure, that the promise would be fulfilled. It is sufficient to say that, the promise to follow a certain procedure having been made, it was fair that the public authority should be held to it.

In other words, avoid the discourse - - -

McHUGH J: But why? Why was it fair that it should be held? Does that mean that they could not change their mind about it?

MR WALKER: No, not at all, your Honour. My case takes that proposition one step further, namely if you are going to change your mind, the liberty being to change your mind, then you should say so, so that the decision does not result from a procedure different from that which you said to the person affected would be followed. That is the lapse from decent dealing. That also observes the restraint between the judicial arm and the executive arm because the judicial arm does not presume to say that promises of that kind are irrevocable. Rather, that the nature of the decent dealing requires that you not have a decision result from a process characterised by a broken promise as opposed to a promise which circumstances have led to being withdrawn, withdrawn as opposed to broken.

Now, the same approach can be seen in the same passages to which my learned friend I think went in Justice Brennan's reasons, page 40 in particular, about three-quarters of the way down that page:

the enquiry whether the applicant entertains a legitimate expectation is superfluous. Again, if an express promise be given or a regular practice be adopted by a public authority, and the promisee or practice is the source of a legitimate expectation, the repository is bound to have regard . . . unnecessary to enquire whether those factors give rise to a legitimate expectation. But the court must stop short of compelling fulfilment of the promise or practice unless the statute so requires -

That passage picks up what your Honour Justice Gummow asked me in-chief concerning whether or not it was a legal requirement. The short answer is no. The only legal requirement has to do with procedural fairness. That is why the procedural fairness in cases of this kind inheres in sticking with what you said you would do unless you notify before the decision, presumably within a reasonable period before the making of the decision, that you are not going to do so, demonstrating that the court is not holding you to that promise but is rather requiring from you a minimum standard of decent dealing in your eventual decision making which may be breached by failing to carry through something you said you would do.

GLEESON CJ: That sounds like holding the administrator to a standard of courtesy.

MR WALKER: It is more than courtesy, your Honour, although there is obviously going to be an overlap, not accidental, between the standards of courtesy and the standards of procedural fairness, yes.

GLEESON CJ: We will reserve our decision in this matter.

At 4.17 PM THE MATTER WAS ADJOURNED