Losing our birthright: Singh v Commonwealth

Abstract

In this article I argue that in Singh v Commonwealth (‘Singh’) the High Court, without good reason, removed the accepted notion that birth in Australia takes a person outside the legislative power granted to the Commonwealth in the aliens and immigration powers. In the article I examine in detail the judgments in Singh, especially the claim made in the majority judgments that there were no relevant authorities concerning children of aliens born in Australia. I then examine all the major cases dealing with the aliens power decided before Singh and show that, contrary to the majority’s claim, there was a longstanding series of authorities that directly and indirectly held that a person born in Australia could not be an alien. I conclude by showing that the High Court has consistently said that previous decisions should only be overturned after serious consideration and for good reasons. This fidelity to authority has been forcefully defended by many High Court judges, including several who decided Singh. It was not, however, given effect to in Singh and this led to a significant change in one of our most important human rights — the right to call somewhere home.