Glass v The Commonwealth

In *Glass v The Commonwealth*, the High Court of Australia considered a dispute between the applicant, Mr. Glass, and the respondent, the Commonwealth of Australia. The case concerned the validity of certain provisions of the *Migration Act 1958* (Cth) that purported to confer non-compellable, non-discretionary powers on the Minister for Immigration to refuse to grant a visa, or to cancel a visa, on the grounds of character. Mr. Glass had been refused a visa on character grounds, and he challenged the constitutional validity of the relevant legislative provisions.

The central legal issue before the High Court was whether the impugned provisions of the *Migration Act* were invalid as contravening Chapter III of the Australian Constitution, which vests the judicial power of the Commonwealth exclusively in the courts. Specifically, the Court had to determine whether the Minister's power to refuse or cancel a visa on character grounds, without the necessity of a court finding that the applicant lacked good character, constituted an unlawful exercise of judicial power by the executive.

McHugh and Kirby JJ, in separate judgments, both concluded that the provisions were constitutionally invalid. Their Honours reasoned that the power to determine whether a person possessed "good character" for the purposes of migration law was an essential element of a judicial determination. By vesting this power in the Minister, the Parliament had impermissibly conferred a function that belonged to the courts under Chapter III of the Constitution. The Minister's role was not merely administrative; it involved making a judgment about a person's character, which is a core judicial function.

The Court ordered that the provisions of the *Migration Act* that conferred these non-compellable, non-discretionary powers on the Minister to refuse or cancel a visa on character grounds were invalid.