Little Tamil ‘a citizen’

Kopika and Tharunicaa.

The debate about the Tamil family from Biloela commonly assumes the little girl at the heart of the legal manoeuvres is not an Australian citizen. While technically correct, this view is founded on a decision at odds with almost a century of High Court citizenship decisions.

Tharunicaa, the two-year-old girl at the centre of the legal dispute, should be a catalyst to overturn this decision and make it crystal clear that anyone born in Australia is an Australian citizen, including Kopika, the couple’s eldest girl.

In 2004, in Singh v Commonwealth of Australia, the High Court considered the case of Tania Singh, a little girl in much the same situation as the Tamil girls. A majority of the court overturned almost a century of cases that had shown that anyone born in Australia was an Australian citizen, with some minor exceptions not relevant to the little girls in question here.

As early as 1908, the High Court made a clear decision, in Potter v Minahan, that birth was central to belonging to a community. The case involved a young man born in 1876 in what was to become Australia who was taken by his Chinese father to China in 1881 but who returned to Australia after Federation. In the words of Chief Justice Samuel Griffith: “Every person becomes at birth a member of the community into which he is born.” In simple terms the court was faced with a choice of deciding whether birthright or allegiance of one’s parents would determine whether Minahan, the young man in question, was an alien. A majority of the court decided that what we would now call birthright citizenship would apply in Australia. Until the decision in Singh, this position was often reaffirmed. Indeed in the 1988 case of Nolan v Minister for Immigration and Ethnic Affairs, the High Court quoted the US Supreme Court’s words on birthright citizenship as accurately reflecting the constitutional position here.

So why did the High Court overturn this established set of cases endorsing birthright citizenship? Common law judges even in constitutional issues are normally loath to go against decided cases. The common law is a conservative institution that believes in the collective wisdom of the past judges. Sometimes, of course, judges recognise that the law as it stands is unfair or inappropriate or that the law as developed is disorganised or not really giving effect to what earlier judges had decided. In Singh, none of these factors applied.

Rather, the majority five judges in that case effectively said they would ignore the 100 years of clear decisions on this matter simply because they disagreed with the earlier judges. There was no finding that birthright citizenship had caused problems for Australia or that the previous cases were confused or inconsistent. The majority changed the law merely because they believed their view of the law to be superior to those of all the judges who had decided on this question since 1908.

The two minority judges in Singh accepted that the cases established birthright citizenship for Australia, that this was clear law and that this was neither inconvenient nor inappropriate for Australia. The Singh decision was not just some technical ruling. It struck at perhaps the most important human right that we have: the right to call somewhere home. And it is not just a matter that affects a few children of a few people seeking asylum. I am the child of immigrants who were Italian citizens when I was born. Singh potentially affects millions of Australians who were born in similar circumstances to my own.

Clearly Singh was wrongly decided and its effects are important and not only because the human rights of Kopica and Tharunicaa are being trampled on. Because of Singh, many others of us in Australia today are here effectively at the sufferance of Peter Dutton and his successors. The two little girls and the rest of us deserve better.

John Gava is adjunct associate professor, Adelaide Law School, University of Adelaide.