I. FACTS
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 concerned the
validity of a deportation order without consideration of a child’s best interests pursuant to the
Convention on the Rights of the Child (CRC).1 Teoh immigrated to Australia without resident status
and later married an Australia citizen with whom he shared seven children.2 An application for
resident status in 1991 was denied as Teoh’s recent drug offences meant the ‘good character’ policy
requirement could not be satisfied.3 The Minister’s delegate later rejected an application for review
as the Immigration Review Panel held that claims on compassionate grounds relating to the
ramifications Teoh’s family faced should he be deported were not compelling enough to dismiss
requirements of good character. On appeal,4 the Full Court ruled that the Minister delegate’s power
was improperly exercised and that the ratification of the CRC, particularly concerning Article 3,5
established a legitimate expectation, in those whose interest are affected, that decision-makers
would be complaint with the CRC.6 Subsequently, a legitimate expectation that the impact of Teoh’s
deportation on his children’s welfare would be considered when determining resident status. 7
The High Court heard the Minister’s appeal.
II. ISSUE
1 Convention on the Rights of the Child art 3.
2 Four of the children were Teoh’s step children. Three of the children were Teoh’s biological children.
3 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [2]-[4] (Mason CJ and Deane J).
4 An application to the Federal Court for review under the Administrative Decisions (Judicial Review) Act 1977 was
dismissed, finding that the Minister delegate’s acceptance of the Panel’s recommendation and order for deportation did
not amount to an improper exercise of power nor a denial of natural justice.
5 Convention on the Rights of the Child art 3.
6 Convention on the Rights of the Child.
7 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [2]-[4] (Mason CJ and Deane J).
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, If the Commonwealth’s ratification of the CRC8 established a legitimate expectation that the
Minister’s delegate would exercise their discretion in accordance with the Convention.9
III. DECISION
The majority accepted the finding that by ratifying an international convention a legitimate
expectation will arise regarding the principles of that convention.10
The majority11 held that ratification of an international convention cannot be ignored as a ‘merely
platitudinous’ act.12 Failure to incorporate the CRC13 into domestic law did not preclude any
significance of its ratification as it is established that Parliament14 intends to comply with and
implement Australia’s international obligations.15 Subsequently, ratification of an international
convention should be identified as a categorical statement that the government intends to, and will,
operate in accordance with the ratified convention.16 This declaration fosters the legitimate
expectation that a child’s best interests17 will be a principal consideration of the administrator who
will then proceed in congruence with the convention. 18
8 Convention on the Rights of the Child.
9Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [13], [16] (Mason CJ and Deane J);
Convention on the Rights of the Child.
10Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26]-[37](Mason CJ and Deane J)
[21]-[34] (Toohey J).
11 Mason CJ, Deane J, Toohey J.
12 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [34] (Mason CJ and Deane J).
13 Convention on the Rights of the Child.
14 Prima facie.
15 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26] (Mason CJ and Deane J).
16 Ibid [34] (Mason CJ and Deane J);
17 Convention on the Rights of the Child art 3.
18Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26]-[37] (Mason CJ and Deane J)
[21]-[34] (Toohey J); Convention on the Rights of the Child.
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Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 concerned the
validity of a deportation order without consideration of a child’s best interests pursuant to the
Convention on the Rights of the Child (CRC).1 Teoh immigrated to Australia without resident status
and later married an Australia citizen with whom he shared seven children.2 An application for
resident status in 1991 was denied as Teoh’s recent drug offences meant the ‘good character’ policy
requirement could not be satisfied.3 The Minister’s delegate later rejected an application for review
as the Immigration Review Panel held that claims on compassionate grounds relating to the
ramifications Teoh’s family faced should he be deported were not compelling enough to dismiss
requirements of good character. On appeal,4 the Full Court ruled that the Minister delegate’s power
was improperly exercised and that the ratification of the CRC, particularly concerning Article 3,5
established a legitimate expectation, in those whose interest are affected, that decision-makers
would be complaint with the CRC.6 Subsequently, a legitimate expectation that the impact of Teoh’s
deportation on his children’s welfare would be considered when determining resident status. 7
The High Court heard the Minister’s appeal.
II. ISSUE
1 Convention on the Rights of the Child art 3.
2 Four of the children were Teoh’s step children. Three of the children were Teoh’s biological children.
3 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [2]-[4] (Mason CJ and Deane J).
4 An application to the Federal Court for review under the Administrative Decisions (Judicial Review) Act 1977 was
dismissed, finding that the Minister delegate’s acceptance of the Panel’s recommendation and order for deportation did
not amount to an improper exercise of power nor a denial of natural justice.
5 Convention on the Rights of the Child art 3.
6 Convention on the Rights of the Child.
7 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [2]-[4] (Mason CJ and Deane J).
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, If the Commonwealth’s ratification of the CRC8 established a legitimate expectation that the
Minister’s delegate would exercise their discretion in accordance with the Convention.9
III. DECISION
The majority accepted the finding that by ratifying an international convention a legitimate
expectation will arise regarding the principles of that convention.10
The majority11 held that ratification of an international convention cannot be ignored as a ‘merely
platitudinous’ act.12 Failure to incorporate the CRC13 into domestic law did not preclude any
significance of its ratification as it is established that Parliament14 intends to comply with and
implement Australia’s international obligations.15 Subsequently, ratification of an international
convention should be identified as a categorical statement that the government intends to, and will,
operate in accordance with the ratified convention.16 This declaration fosters the legitimate
expectation that a child’s best interests17 will be a principal consideration of the administrator who
will then proceed in congruence with the convention. 18
8 Convention on the Rights of the Child.
9Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [13], [16] (Mason CJ and Deane J);
Convention on the Rights of the Child.
10Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26]-[37](Mason CJ and Deane J)
[21]-[34] (Toohey J).
11 Mason CJ, Deane J, Toohey J.
12 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [34] (Mason CJ and Deane J).
13 Convention on the Rights of the Child.
14 Prima facie.
15 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26] (Mason CJ and Deane J).
16 Ibid [34] (Mason CJ and Deane J);
17 Convention on the Rights of the Child art 3.
18Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [26]-[37] (Mason CJ and Deane J)
[21]-[34] (Toohey J); Convention on the Rights of the Child.
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