Court/Judicial body: High Court of Australia
Date: April 7, 1995 CRC
Provisions: Article 3: Best interests of the child; Article 5: Evolving capacities of the child; Article 9: Protection from separation from parents against the child’s will
Background: The Immigration Minister of Australia ordered that Mr. Teoh, a Malaysian citizen with family and children in Australia, be deported from Australia on the basis of his conviction for heroin importation and possession. Mr. Teoh appealed this verdict to the Federal Court of Australia, which overturned the deportation order, and the High Court of Australia was then called to review the case.
Issue and resolution: Best interests of the child and international obligations. To what extent does the Convention on Rights of Child (“CRC”) apply in Australian law given that Australia has ratified the Convention but has not yet incorporated CRC’s provisions into its national law by statute. The Court held that the ratification created an expectation that in all actions concerning children, the best interests of the child would be a primary consideration.
Court reasoning: Ratification of a convention is a positive statement by the Australian government to the world and its people that it will act in accordance with the Convention. This positive statement creates an expectation that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children in proceedings that involve them as “a primary consideration.” This does not necessarily mean that all decisions must be made in line with the best interests of children, but the best interests must be considered and all parties affected by the case must be allowed to speak on the subject. Reviewing the Immigration Minister’s decision, it is clear that the best interests of the children were not treated as a primary consideration and that there was no opportunity to contest his decision. Therefore, the appeal from the Federal Court’s decision, which sought to sustain the Immigration Minister’s recommendation that Teoh be deported, was dismissed.
Excerpt citing CRC and other relevant human rights Lee J considered that the Executive’s ratification of the United Nations Convention on the Rights of the Child (the Convention) was a statement to the national and international community that the Commonwealth recognised and accepted the principles of the Convention. Article 3.1 of the Convention provides that “[i]n all actions concerning children … the best interests of the child shall be a primary consideration”. Although noting that the Convention had not been incorporated into Australian law, his Honour stated that its ratification provided parents and children, whose interests could be affected by actions of the Commonwealth which concerned children, with a legitimate expectation that such actions would be conducted in a manner which adhered to the relevant principles of the Convention. This meant that, in such a context, the parents and children who might be affected by a relevant decision had a legitimate expectation that the Commonwealth decision-maker would act on the basis that the “best interests” of the children would be treated as “a primary consideration”. His Honour held that the delegate had not exercised her power consistently with that expectation because she failed to initiate appropriate inquiries and obtain appropriate reports as to the future welfare of the children in the event that the respondent were deported. That failure involved an error of law. … Carr J’s approach was similar to that adopted by Lee J. Carr J also considered that, although the Convention was not part of Australian municipal law, the children in this case had a legitimate expectation that their father’s application would be treated by the Minister in a manner consistent with its terms. … Lee and Carr JJ evidently considered that Art 3 of the Convention had an application to the exercise of the discretion, though their Honours did not express any cogent reasons for that conclusion. The respondent did not rely on Art 9, no doubt because it does not seem to address decisions to deport or, for that matter, decisions to refuse permanent entry. The crucial question is whether the decision was an “action concerning children”. It is clear enough that the decision was an “action” in the relevant sense of that term, but was the decision an action “concerning children”? The ordinary meaning of “concerning” is “regarding, touching, in reference or relation to; about”.. The appellant argues that the decision, though it affects the children, does not touch or relate to them. That, in our view, is an unduly narrow reading of the provision, particularly when regard is had to the grounds advanced in support of the application and the reasons given for its rejection, namely that the respondent’s bad character outweighed the compassionate considerations arising from the effect that separation would have on the family unit, notably the young children. A broad reading and application of the provisions in Art 3, one which gives to the word “concerning” a wide-ranging application, is more likely to achieve the objects of the Convention.
One other aspect of Art 3 merits attention. The concluding words of Art 3.1 are “the best interests of the child shall be a primary consideration” (our emphasis). The Article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight. The impact of Art 3.1 in the present case is a matter to be dealt with later in these reasons. … Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration”. … The question which then arises is whether the delegate made her decision without treating the best interests of the child as a primary consideration. There is nothing to indicate that the Panel or the Minister’s delegate had regard to the terms of the Convention. That would not matter if it appears from the delegate’s acceptance of the Panel’s recommendation that the principle enshrined in Art 3.1 was applied. If that were the case, the legitimate expectation was fulfilled and no case of procedural unfairness could arise. It can be said that the delegate carried out a balancing exercise in which she considered the plight of Mrs Teoh and the children and recognized that they would face a “very difficult and bleak future” if the respondent were deported. On the other hand, she considered that the respondent had been convicted of very serious offences and this factor outweighed the “compassionate claims”. However, it does not seem to us that the Panel or the delegate regarded the best interests of the children as a primary consideration.
The last sentence in the recommendation of the Panel reveals that, in conformity with the departmental instructions, it was treating the good character requirement as the primary consideration. The Panel said: “The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record. (Emphasis added.)” The language of that sentence treats the policy requirement as paramount unless it can be displaced by other considerations. There is no indication that the best interests of the children are to be treated as a primary consideration. A decisionmaker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. Toohey J., Concurring Opinion: The touchstone in Art 3 is “actions concerning children”. The scope of the provision can be gauged if the word concerning” is given its ordinary meaning of “relating to; regarding; about”or “regarding, touching, in reference or relation to; about” The refusal of an application for resident status to a parent of dependent children living in Australia, with the direct consequence of deportation for the parent and the breaking up of the family, is an action concerning children. It follows that while Australia’s ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course.
Follow Up: Following this case, the Minister for Foreign Affairs and the then Attorney-General issued a joint statement that the act of entering into a treaty does not give rise to legitimate expectations in administrative law. Subsequently, legislation was twice introduced into Parliament to reverse the position created by this case and instead clarify that the mere fact that Australia is a party to a particular international treaty does not give rise to the expectation that an administrative decision will conform with the requirements of the treaty or that notice and adequate opportunity to argue against a decision contrary to the requirements would be granted. While this legislation was never passed, courts have shown strong reservations about following the logic of the Teoh case going forward. For more information, read an Article about “The Rise and Fall of Teoh in Australia” here: http://www.austlii.edu.au/au/journals/UMonashLRS/2010/8.html.
CRIN Comments: In line with the CRC, CRIN believes that the best interests of children must be a primary consideration in every proceeding involving them, whether directly or indirectly. CRIN believes that this case as decided is consistent with the CRC. In any proceeding where an immigrant parent is at risk of being deported from a country, the interests of any children involved must be considered and all efforts to avoid separating the family made. In the same way that this judgment is consistent with the CRC, however, the legislation introduced after this case was decided and subsequent case law on the subject is inconsistent with the CRC. As a party to the CRC, Australia must respect its international obligation to consider the best interests of children in all proceedings involving them.
Citation: 128 ALR 353
Link to Full Judgment: http://www.law.mq.edu.au/Units/law404/MIEA%20v%20Ah%20Hin%20Teoh.htm