GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
TANIA SINGH AN INFANT BY HER NEXT FRIEND MALKIT SINGH PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Singh v Commonwealth of Australia
[2004] HCA 43
9 September 2004 S441/2003
ORDER
Questions in the case stated answered as follows:
1.Q. Is the plaintiff an alien within the meaning of s 51(xix) of the Constitution?
A. Yes.
2.Q. If the answer to (1) is "No", is s 198 of the Migration Act 1958 (Cth) capable of valid application to the plaintiff?
A. Does not arise.
3.Q. By whom should the costs of the case stated to the Full Court of this Court be borne?
A. The plaintiff.
Representation:
B Levet with R B O'Hair and B C Boss for the plaintiff (instructed by Bharati Solicitors)
D M J Bennett QC, Solicitor-General of the Commonwealth with K Rubenstein and C J Horan for the defendants (instructed by Australian Government Solicitor)
Intervener:
J Basten QC with J R Clarke intervening on behalf of Applicant A269/2003 (instructed by Jeremy Moore & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Singh v Commonwealth of Australia
Constitutional law (Cth) – Legislative powers of the Parliament – Power to make laws with respect to naturalization and aliens – Meaning of "aliens" – Plaintiff born in Australia to non-citizen parents – Infant plaintiff not a citizen under the Australian Citizenship Act 1948 (Cth) – Plaintiff's parents citizens of India – Whether plaintiff an alien under s 51(xix) of the Constitution.
Constitutional law (Cth) – Interpretation – Interpretive theories – Significance of historical context in constitutional interpretation – Use of Convention Debates.
Constitutional law (Cth) – Legislative powers of the Parliament – Whether Migration Act 1958 (Cth), s 198 validly authorises the removal of a non-alien from Australia because that person is a non-citizen under the AustralianCitizenship Act 1948 (Cth).
GLEESON CJ. The primary issue in this case is whether the plaintiff is an alien within the meaning of s 51(xix) of the Constitution.
The proceedings challenge the validity of s 198 of the Migration Act 1958 (Cth), which provides for the removal of unlawful non-citizens (defined, in effect, to mean non-citizens who do not have permission to be or remain in Australia), in its application to the plaintiff. The plaintiff is a non-citizen. She has no substantive visa. Her parents, who are both citizens of India, entered Australia without visas in 1997. The plaintiff was born in Australia in 1998. She is a citizen of India, by descent. The Commonwealth contends that s 198, in its application to the plaintiff, is a valid law made pursuant to the power conferred upon Parliament by s 51(xix) of the Constitution, that is, the power to make…
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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AGLC
Singh v The Commonwealth [2004] HCA 43
Case
[2004] HCA 43
Decision Date
CaseChat Overview and Summary
This case concerned a constitutional question brought before the High Court of Australia on a case stated. The plaintiff, Ms Tania Singh, was born in Australia to parents who were citizens of India and considered "aliens" for the purposes of section 51(xix) of the Constitution. Ms Singh herself was not a citizen under the Australian Citizenship Act 1948 (Cth). The central dispute revolved around whether Ms Singh, despite being born in Australia, was an "alien" within the meaning of the Constitution, which would permit her removal from Australia under the Migration Act 1958 (Cth).
The High Court was required to determine two primary legal issues. First, whether Ms Singh, born in Australia to non-citizen parents, qualified as an "alien" for the purposes of the legislative power granted to the Commonwealth Parliament by section 51(xix) of the Constitution. Second, if she were not an alien, whether section 198 of the Migration Act 1958 (Cth) could validly authorise her removal from Australia solely on the basis of her non-citizen status under the Australian Citizenship Act 1948 (Cth).
The Court reasoned that the historical context of section 51(xix) of the Constitution, including the Convention Debates, indicated an intention to grant Parliament a broad power to legislate with respect to aliens, rather than a narrow one. The Court found that the plaintiff's argument, which sought to rely on the Convention Debates to support her claim, was not made out. Despite being born in Australia, the Court concluded that Ms Singh was a citizen of a foreign state and the child of foreign citizens, and therefore an alien within the meaning of section 51(xix). Consequently, the first question in the case stated was answered in the affirmative.
The Court ordered that the first question in the case stated be answered "Yes", and the second question did not arise. The costs of the case stated were ordered to be borne by the plaintiff.
Orders
Orders of the court
Questions in the case stated answered as follows:
1. Q. Is the plaintiff an alien within the meaning of s 51(xix) of the Constitution?
A. Yes.
2. Q. If the answer to (1) is "No", is s 198 of the Migration Act 1958 (Cth) capable of valid application to the plaintiff?
A. Does not arise.
3. Q. By whom should the costs of the case stated to the Full Court of this Court be borne?
A. The plaintiff.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH J
It was argued that the record of the Constitutional Debates concerning a failed proposal to include in what is now s 51 a power to make laws with respect to Commonwealth citizenship in some way supports the plaintiff. The first thing to be noted is that there were two alternative, and inconsistent, proposals. In 1898, the chief proponent of the inclusion of a citizenship power, Dr Quick, said that he wanted to see either a definition of citizenship in the Bill or a power conferred on the Parliament to define citizenship[39]. The debate that followed related to both alternatives. A number of speakers raised various objections. Some regarded a definition of citizenship as unnecessary[40]. Some saw the proposal as cutting across the concept of state citizenship[41]. Mr Isaacs thought that "all the attempts to define citizenship will land us in innumerable difficulties"[42]. He expressed concern that the proposed amendment might deprive Parliament of the power of excluding people of certain specified races "who happened to be British subjects"[43]. The subject of race was of great concern to the framers, and their views on that matter were quite different from those which now prevail. To put the point at its lowest, a purpose of limiting Parliament's power to legislate for exclusion is not apparent. It is impossible to discern in the record of the Convention Debates any specific reason for the rejection of Dr Quick's ambiguous proposal. The discussion throws no light on the purpose or object of s 51(xix), except to the extent that it suggests that a broad, rather than a narrow, power with respect to aliens was in contemplation.[39]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1751.[40]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1782.[41]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 2 March 1898 at 1764.[42]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1797.[43]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 3 March 1898 at 1788.Conclusions and Orders The argument for the plaintiff has not been made out. She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien. The first question in the case stated should be answered, "Yes". The second question does not arise. The third question should be answered, "The plaintiff". Mc Is a child born in Australia an alien simply because the child's parents are aliens? That is the principal issue in these proceedings, brought on behalf of Ms Tania Singh, who was born in Australia but whose parents are "aliens" within the meaning of s 51(xix) of the Constitution. For her, the answer to this question is of momentous importance. If it is answered in the affirmative, the Minister for Immigration and Multicultural and Indigenous Affairs may proceed with her intention to deport her. Further, Ms Singh would have no legal or constitutional right to enter Australia in the future. Entry would be subject to the discretion of the Minister.