Plaintiff M61/2010E v Commonwealth

In the High Court of Australia, the plaintiffs, identified as "offshore entry persons" under the *Migration Act 1958* (Cth), challenged the lawfulness of their detention. These individuals were detained under section 189(3) of the Act and claimed Australia owed them protection obligations under the Refugees Convention. Their ability to apply for a visa was contingent on the Minister deciding, in the public interest, to allow such an application under section 46A, or the Minister granting a visa in the absence of a valid application under section 195A. Each plaintiff underwent a "Refugee Status Assessment" by a departmental officer and an "Independent Merits Review" by a contractor, both of whom concluded that Australia did not owe the plaintiffs protection obligations. The core dispute revolved around whether the powers under sections 46A and 195A, which could only be exercised by the Minister personally, were subject to a duty to consider their exercise, and whether the assessment and review processes afforded procedural fairness.

The legal issues before the Court included whether the continuing detention of the plaintiffs was lawful, given that the assessment and review processes were undertaken for the purposes of the *Migration Act*. The Court was asked to determine if the Minister was implicitly bound to consider exercising the powers under sections 46A and 195A in every case where an offshore entry person claimed protection obligations, and whether the officers conducting the assessment and review were obliged to afford procedural fairness and act according to law. Furthermore, the Court considered whether the assessment and review processes themselves were procedurally fair and conducted in accordance with the law. Constitutional questions arose regarding the validity of section 46A of the *Migration Act*, specifically whether it was invalid due to the unenforceability of any consideration to exercise the power, and whether the Minister's power was arbitrary, potentially implicating section 75(v) of the Constitution.

The Court reasoned that the "Carltona principle" did not apply to the powers under sections 46A and 195A, meaning the Minister was not bound to consider exercising these powers personally. The Court found that the departmental officers and independent reviewers were not exercising the Minister's personal powers, and therefore were not bound by the *Carltona* principle. However, the Court determined that the officers and reviewers were bound to afford procedural fairness to the plaintiffs and to act according to law. The Court concluded that the third defendant (the independent reviewer) made an error of law by failing to treat the provisions of the *Migration Act* and Australian court decisions as binding, and by failing to observe the requirements of procedural fairness.

In each matter, the Court ordered a declaration that the third defendant made an error of law in its recommendation. The applications were otherwise dismissed, and the first and second defendants were ordered to pay the plaintiffs' costs.