Case commentary: A prelude to the demise of Teoh: The High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam

The authority of the High Court’s 1995 decision in Teoh must now be examined in light of the High Court’s 2003 decision in Lam. In the latter case, the minority view of McHugh J expressed in Teoh appears to have gained ascendancy among a majority of the present High Court judges. Though the critique on Teoh offered in Lam is contained in obiter comments only, the principle that ratification of a treaty may give rise to a legitimate expectation that administrative decision-makers will act in accordance with the terms of the treaty, has been seriously called into question. In this paper, each of the separate judgments provided in Lam are examined in detail. The argument is presented that the reasoning employed by the Court is open to criticism on several grounds. These include the introduction of private law concepts into the public law sphere, and the failure to distinguish between questions going to the existence of a breach of procedural fairness, and questions that pertain to the discretionary power to grant or deny a remedy. Though an investigation of the continuing role that legitimate expectations may play in administrative law should be welcomed, it is argued that the reasoning adopted in Lam is flawed, and is likely to create only further confusion surrounding legitimate expectations generally