Singh v Commonwealth of Australia [2004] HCA 43

Singh v Commonwealth of Australia [2004] HCA 43

By majority (Gleeson CJ, Gummow, Hayne & Heydon JJ, Kirby J): A person born in Australia to parents who are neither Australian citizens nor permanent residents, and who is a citizen of a foreign country by descent, can validly be treated as an ‘alien’ within the meaning of s 51(xix) of the Constitution. The decisive legal characteristic conferring alienage is the existence of allegiance to a sovereign other than Australia. The Parliament can define and apply the status of ‘alien’ to such persons. As a result, the removal provisions under s 198 of the Migration Act 1958 (Cth) can validly apply to them.

Parties
Plaintiff: Tania Singh (infant by next friend Malkit Singh); Defendants: Commonwealth of Australia & Anor; Intervener: Applicant A269/2003 (by J Basten QC with J R Clarke)
Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Case Stated / Full Court, High Court of Australia – Answers to Stated Questions
Outcome
Majority: Plaintiff is an alien within the meaning of s 51(xix); costs of the case stated to be borne by the plaintiff.
Legal Topics
Aliens Power (s 51(xix)), Naturalisation, Citizenship/alienage Status, Interpretation of Federal Legislative Power, Birthright Citizenship, Migration Act Removal Provisions
Constitutional Law Aliens Power (s 51(xix)) Naturalisation Citizenship/alienage Status Interpretation of Federal Legislative Power Birthright Citizenship Migration Act Removal Provisions

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Tania Singh (infant by next friend Malkit Singh)

Plaintiff

Commonwealth of Australia & Anor

Defendants

Applicant A269/2003 (by J Basten QC with J R Clarke)

Intervener

Procedural Posture

Case Stated / Full Court, High Court of Australia – Answers to Stated Questions

Legal Issues

  1. 1 Whether a person born in Australia to non-citizen parents is an ‘alien’ under s 51(xix) of the Constitution
  2. 2 Whether Parliament can validly treat as ‘aliens’ those born in Australia to non-citizen/non-resident parents
  3. 3 Whether s 198 Migration Act 1958 (Cth) validly applies to the plaintiff

Ratio Decidendi

By majority (Gleeson CJ, Gummow, Hayne & Heydon JJ, Kirby J): A person born in Australia to parents who are neither Australian citizens nor permanent residents, and who is a citizen of a foreign country by descent, can validly be treated as an ‘alien’ within the meaning of s 51(xix) of the Constitution. The decisive legal characteristic conferring alienage is the existence of allegiance to a sovereign other than Australia. The Parliament can define and apply the status of ‘alien’ to such persons. As a result, the removal provisions under s 198 of the Migration Act 1958 (Cth) can validly apply to them.

Court Disposition

Majority: Plaintiff is an alien within the meaning of s 51(xix); costs of the case stated to be borne by the plaintiff.

Orders

  • Answer to Q1: Yes, the plaintiff is an alien.
  • Answer to Q2: Does not arise.