The ‘Fatal Conundrum’ of ‘No-Consideration’ Clauses after Plaintiff M61

DOI10.22145/flr.39.2.5
Published date01 June 2011
Date01 June 2011
Subject MatterArticle
THE 'FATAL CONUNDRUM' OF 'NO-CONSIDERATION'
CLAUSES AFTER PLAINTIFF M61
Christopher Tran*
I INTRODUCTION
In Plaintiff M61/2010E v Commonwealth ('Plaintiff M61'),1 the High Court held in a
unanimous joint judgment that the plaintiff asylum seekers on Christmas Island were
entitled to procedural fairness and to have their claims for refugee status determined
according to law. This decision has significant ramifications for the government's
asylum seeker policy, and it has already been the subject of academic commentary
from an immigration perspective.2 The case also has broader doctrinal significance
because it is only the second time that the full bench has considered what this article
will call a 'no-consideration' clause.3 The Court held that the legislature can validly
confer a power on a decision-maker and at the same time provide that the decision-
maker has no duty to consider exercising it. However, on the facts before it, the
Minister had decided to consider all requests for asylum and thus had moved beyond
the protection of the no-consideration clause. Moreover, declaratory relief was
appropriate even though the constitutional writs were unavailable. This handling of
the no-consideration clause reveals a concern to safeguard judicial review from
legislative intrusion. This article explores the use of 'no-consideration' clauses to
restrict judicial review and the Court's approach to such clauses in Plaintiff M61.
Part II of this article reviews the legislative history of 'no-consideration' clauses and
the early case la w on how they operated. Part III then examines the High Court's
approach to such clauses in Plaintiff M61. Part IV uses a hypothetical set of facts to
further explore how the Court's reasoning operates to maintain judicial review in the
face of a no-consideration clause.
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* BA, LLB (Hons) (Melb). My thanks to Professor Mark Aronson, Olaf Ciolek, Graeme Hill,
Christopher Loo, Zach Meyers, Vee Vien Tan, Julia Wang and David Wood. The views
expressed are my own, as are any errors.
1 (2010) 85 ALJR 133.
2 See Mary Crock and Daniel Ghezelbash, 'Due Process and Rule of Law as Human Rights:
The High Court and the "Offshore" Processing of Asylum Seekers' (2011) 18 Australian
Journal of Administrative Law 101.
3 See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants
S134/2002 (2003) 211 CLR 441.
304 Federal Law Review Volume 39
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II THE HISTORY OF NO-CONSIDERATION CLAUSES
The legislative introduction of no-consideration clauses
'No-consideration' clauses provide that a decision-maker 'does not have a duty to
consider whether to exercise' a particular statutory power, whether the decision-maker
is requested to do so 'or in any other circumstances'. These clauses rebut the ordinary
presumption that a statutory conferral of power is coupled with an enforceable duty to
consider exercising it.4 This kind of provision first appeared in the Migration Legislation
Amendment Act 1989 (Cth). Section 61 of the Migration Act 1958 (Cth) ('Migration Act'),
as amended, empowered the Minister to set aside decisions made by an internal
review officer. Section 61(10) was the no-consideration clause:
The Minister does not have a duty to consider whether to exercise the power [to set aside
a decision by an internal review officer] in respect of any decision, whether he or she is
requested to do so by the applicant or by any other person, or in any other circumstances.
Section 64U was similarly phrased and it both empowered the Minister to set aside
certain decisions of the Immigration Review Tribunal and also provided that the
Minister had no duty to consider exercising that power.
These no-consideration clauses were inserted into the Migration Legislation
Amendment Act 1989 (Cth) by the Migration Legislation Amendment Act (No 2) 1989 (Cth).
According to the Explanatory Memorandum:
This provision provides that the Minister is not under a duty to consider whether to
exercise his or her power to substitute a decision. Where the Minister decides not to
exercise his power, that decision is not subject to judicial review by the Federal Court on
the grounds that there has been a failure to make a decision pursuant to section 7 of the
Administrative Decisions (Judicial Review) Act 1977.5
The parliamentary debates shed further light on their intended operation. According to
the second reading speech of the then Minister Assisting the Minister for Immigration,
Local Government and Ethnic Affairs:
To remove confusion as to the operation of the Administrative Decisions (Judicial Review)
Act 1977 in relation to the Minister's powers after each tier of review, provisions have
been inserted which provide that there is no duty on the Minister to exercise the power in
individual cases.6
Dr Theophanous, the chair of the Joint Select Committee on Migration Regulations that
was involved in the amendments, added:
Of course, much depends on the Minister's desire to exercise the amendments to section
64U. If a Minister does not feel like exercising that power very much, that Minister will
look at only a small number of cases. On the other hand, a Minister who feels like
exercising that power comprehensively may desire to look at a very large number of
cases. The situation is left in the hands of the Minister. There is no requirement … for the
Minister to look at cases if he does not feel that the compassionate circumstances warrant
anything more than a cursory glance. In other words, the Minister can decide to use his
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4 See Murphyores Inc Pty Ltd v Commonwealth (1975) 136 CLR 1, 1718 (Mason J).
5 Explanatory Memorandum, Migration Legis lation Amendment Bill (No 2) 1989 (Cth) 2 [6]
(s 61(10)), 3 [11] (s 64U(6)).
6 Commonwealth, Parliamentary Debates, House of Representatives, 21 December 1989, 3458
(Allan Holding).

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