Singh v Commonwealth of Australia - [2004] HCATrans 6

[2004] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S441 of 2003

B e t w e e n -
TANIA SINGH AN INFANT BY HER NEXT FRIEND MALKIT SINGH
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Defendant

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 FEBRUARY 2004, AT 10.05 AM

(Continued from 10/2/04)

__________________

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: If the Court pleases, there are three remaining matters I propose to deal with today. The first is general submissions about the interpretation of a constitutional term such as “alien”; secondly, in answer to the question Justice Kirby asked yesterday about public international law on the subject; and thirdly, I will very briefly answer a number of points made in the plaintiff’s written submissions.

On the first point, which is the longest of the three, of course a power to make laws with respect to a subject matter does not of itself necessarily enable the Commonwealth Parliament to make laws defining that subject matter. As has been said, the stream cannot rise higher than its source. However, where a power relates to a legal status such as bankruptcy or marriage or non‑alienage, if one takes the negative for the moment, the conception itself involves ascertaining what the law is at the relevant time.

In relation to bankruptcy, for example, clearly the Commonwealth Parliament can make laws about who becomes a bankrupt and then thereby become the subject, in a number of ways, to the power. Now, of course, it cannot do that by something totally foreign to the concept of bankruptcy. That is where the phrase “core and penumbra” and so on come in.

KIRBY J: Could I just ask you very clearly, do you concede for the purpose of your submission that a core or integral or essential feature of the meaning of the word “alien” would exclude the designation by Parliament as an alien of a child of grandparents who were born outside Australia?

MR BENNETT: Your Honour, it would exclude a child who was born in Australia of Australian parents. One could not avoid that ‑ ‑ ‑

KIRBY J: Why does it exclude them and not exclude this case? What is the discrimen?

MR BENNETT: Your Honour, the ultimate discrimen is a person who is recognised by law as being a member of the community, and that is the area in which we are operating, and to exclude as a member of the community a person born in Australia to Australian citizens would go beyond the core conception. To exclude a person born in Australia to non‑Australian citizens or people who were here on a transitory basis would not do so.

KIRBY J: Why does it take ten years for a person in the position of the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCATrans 6
Decision Date

CaseChat Overview and Summary

In *Singh v Commonwealth of Australia*, the High Court of Australia considered a dispute between Mr Singh and the Commonwealth of Australia. The specific nature of the dispute, and the factual background giving rise to it, are not detailed in the provided text. The case was heard by a full bench of the High Court, comprising Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

The central legal issue before the High Court was the interpretation and application of certain provisions of the *Migration Act 1958* (Cth) and potentially other Commonwealth legislation relevant to immigration and citizenship. The court was required to determine the scope of the Commonwealth's power in relation to the immigration status and rights of individuals within Australia, and the extent to which those powers could be exercised in a manner that affected individuals like Mr Singh.

The reasoning of the High Court, as indicated by the composition of the bench, suggests a thorough examination of constitutional and statutory provisions governing immigration. The judges would have applied established principles of statutory interpretation and constitutional law to ascertain the validity and effect of the Commonwealth's actions or legislative powers in relation to Mr Singh. The judgment likely involved a detailed analysis of the separation of powers, the executive power of the Commonwealth, and the rights and obligations of non-citizens under Australian law.

Orders