Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/12

Beech-Jones J

s 501 of that Act ("Direction No 55"). Direction No 55 provided that any exercise of the discretion conferred by s 501 must be informed by principles that included the protection of the Australian community. By reference to that principle, the issues paper described the facts and circumstances of the 2003 and 2007 offences. The issues paper also advised the delegate that the plaintiff had other "serious convictions" for similar offences "dating back to 1996, when he was a juvenile aged 13".

The issues paper and its attachments, including the police certificate, were provided to the delegate. The delegate's reasons record that he took into account the plaintiff's convictions, including his "convictions" for offences for which he was sentenced by the Children's Court when he was under the age of 16 years.

Sections 85ZR and 85ZS of the Crimes Act and Thornton

The plaintiff contended that the delegate's decision was affected by two jurisdictional errors. The first alleged error was that the delegate supposedly acted on a misunderstanding of the law in treating the plaintiff as having been "convicted" of the offences listed on the police certificate which were committed when he was under 16 years (or at least for which he was sentenced by the Children's Court when he was under 16 years). The second alleged error was that, in having regard to those offences and treating them as "criminal offending", the delegate took into account material he was precluded from considering by ss 85ZR and 85ZS of the Crimes Act. At the hearing, senior counsel for the plaintiff accepted that the first contention need not be addressed if the second contention succeeded. As the second contention should be accepted, it is not necessary to address the first contention.

Sections 85ZR and 85ZS

Sections 85ZR and 85ZS are found within Div 2 of Pt VIIC of the Crimes Act. Division 2 is entitled "Pardons for persons wrongly convicted, and quashed convictions". Section 85ZR(2) addresses the effect of a particular form of State or foreign law concerning convictions. It relevantly provides:

"Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country: