Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/13

Beech-Jones J

(a) …

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence." (emphasis added)

Section 85ZR(2) operates "[d]espite any other Commonwealth law", including s 501(2) of the Migration Act. For the purpose of s 85ZR(2), a "Commonwealth authority" includes a Commonwealth Minister, a Commonwealth department and a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, which includes the delegate.

Section 85ZS(1) elaborates on the consequences of s 85ZR operating so that a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence by any Commonwealth authority. Thus, the person is not required, in those circumstances or for that purpose, to disclose the fact that they were charged with or convicted of the offence. Another consequence, in s 85ZS(1)(d)(ii), is that "anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence" (emphasis added). Section 85ZS(1) does not affect the generality of s 85ZR and s 85ZM relevantly provides that a person shall be taken to have been convicted of an offence if "the person has been charged with, and found guilty of, the offence but discharged without conviction".