Singh v The Commonwealth & Anor [2004] HCATrans 37 (1 March 2004)

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Singh v The Commonwealth & Anor [2004] HCATrans 37 (1 March 2004)

Last Updated: 2 March 2004

[2004] HCATrans 037

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

Directions hearing

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 1 MARCH 2004, AT 9.32 AM

Copyright in the High Court of Australia

MR B. LEVET: If the Court pleases, I appear for the plaintiff, Miss Singh, your Honour. (instructed by Bharati Solicitors)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR B.D. O’DONNELL, for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: I received a draft amended case stated which apparently has been prepared in the office of the defendant. Have you seen that, Mr Levet?

MR LEVET: Yes, I have a copy, your Honour. We have been having discussions briefly. There needs to be an amendment to paragraph 12 of my friend’s amended case stated by the insertion of the words “of section 10(2)”, that is, after the word “meaning” in the last line.

HIS HONOUR: So it now reads, relevantly:

The plaintiff is not an “Australian citizen” within the meaning of section 10(2) of the Australian Citizenship Act 1948 (Cth).

MR LEVET: Yes.

HIS HONOUR: Are you content with that amendment, Mr Solicitor?

MR BENNETT: Yes, your Honour.

HIS HONOUR: Subject to that amendment, are you happy with the amended case stated as proposed by the defendants?

MR LEVET: I am happy with the statement of agreed facts, your Honour. I am not altogether content with the questions reserved.

HIS HONOUR: We have to deal with this now, Mr Levet. We cannot just allow the matter to run. I allowed time so that the parties could consult. If you want to change the questions reserved - - -

MR LEVET: No. The original questions reserved that were reserved on the last occasion, your Honour will note that the first question reserved was whether the plaintiff had acquired Australian citizenship pursuant to section 10(2).

HIS HONOUR: Correct me if I am wrong, I thought during the argument you conceded that “citizenship” was a statutory concept, that it was not a constitutional concept, and that within the Australian Citizenship Act your client had not acquired Australian citizenship and therefore that the first question was not really relevant to the disposition of your client’s rights.

MR LEVET: I suppose, your Honour, that what we had attacked specifically was section 10(2) of the Act, originally, and we would have said that had the Commonwealth not got power to enact section 10(2), she would be a citizen by operation of the remainder of the Act.

HIS HONOUR: But “citizenship” is only a statutory concept and therefore she only gets whatever the Parliament enacts for her. As I recollect the oral argument in the Court, the return of the case stated before the Full Court, the statutory notion of “citizenship” really retreated in significance.

MR LEVET: It certainly has retreated in significance. Your Honour, I suppose, if I could put it thus, that what we would hope for is such questions to be reserved as would give the Court the greatest possible freedom in determining the issue that was before it.

HIS HONOUR: Well, it is not a question of the freedom for you, it is a question of the issues which emerged during argument which I have to state for the opinion of the Full Court. My recollection, which is reasonably clear, is that “citizenship” faded as the case went on.

MR LEVET: It did, your Honour, yes.

HIS HONOUR: And that you were really anchoring your claim in the Constitution and in the fact that your client was not an alien and therefore could not be deported or removed.

MR LEVET: Ultimately, yes, your Honour.

HIS HONOUR: Now, the questions that are posed in questions 1 and 2, as now stated, really present that issue to the Court for decision, the first being the constitutional issue, and the second the consequence for the validity of the section of the Migration Act which provides for the removal of unlawful non-citizens.

MR LEVET: Your Honour, I was concerned, having re-read the transcript, that on the questions reserved as they currently are, or as they are currently proposed to be reserved in this document, there was some scope that was available for somebody to be a non-national non-alien.

HIS HONOUR: Those matters may well be discussed in reasoning, but the purpose of listing the matter today is to refine the questions. The
argument ranged far and wide – issues were presented concerning a constitutional notion of nationality, concerning the status of “subject of the Queen”, concerning whether that status had transmogrified into status of the Queen in right of Australia. Those are matters that will doubtless be considered and discussed in the reasons. But when one comes down to the questions to be answered, unless you are inviting the response unnecessary to answer, the purpose of listing the matter today is to present the questions the answer to which will determine your client’s rights.

MR LEVET: Yes.

HIS HONOUR: It does seem to me that the three questions which are presented in the defendant’s draft do just that.

MR LEVET: In that case, your Honour, I am content with the questions reserved, as drafted.

HIS HONOUR: I am here to hear submissions to the contrary. If you disagree, then now is your chance, or forever hold your peace.

MR LEVET: I will hold it, your Honour.

HIS HONOUR: Is there anything that I have said that you disagree with, Mr Solicitor?

MR BENNETT: No, your Honour. The relevant page in the transcript is page 120, the statement by Mr O’Hair at 5290, but we would, respectfully, have put very much what your Honour put to my learned friend.

HIS HONOUR: Yes, very well.

In my opinion, the questions that are presented in the defendant’s draft correctly respond to the concerns that were expressed by the Court during the hearing of this matter. Accordingly, I will amend the case stated in the terms of the draft amended case stated presented to me this morning by the parties with the addition of the words “s 10(2)” in paragraph 12. The plaintiff should have the draft re-engrossed and filed in the Court. When it is so filed, I will sign the amended draft and the Registrar will cause the amended draft to be provided to all of the other Justices. Costs of today will be costs in the proceeding in the Court and I certify for the attendance in Chambers of counsel.

Is there anything else you ask me to do, Mr Levet?

MR LEVET: No, thank you, your Honour.

HIS HONOUR: Mr Solicitor?

MR BENNETT: No, your Honour.

HIS HONOUR: Thank you very much. They are the orders that I make. The Court will now adjourn.

AT 9.41 AM THE MATTER WAS CONCLUDED