Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/14

Beech-Jones J

Thornton

In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was "not taken to be", a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the "corresponding purpose" was "any purpose", including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that "[t]he Minister's consideration of Mr Thornton's youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act" (emphasis added).

Gordon and Edelman JJ reached the same conclusion by in part relying on s 85ZS. Their Honours construed s 85ZR(2) so that, if a State law provides that in "particular circumstances" a person is deemed never to have been convicted of an offence for any purpose, then a Commonwealth authority in that State in those circumstances is to take that person as never having been convicted for any purpose. Their Honours construed ss 183 and 184 of the Youth Justice Act as specifying particular circumstances in which a person was taken never to have been convicted, namely, where a finding of guilt had been made and a court had decided or been mandated not to record a conviction. Thus, their Honours found that s 85ZR(2) was engaged for all purposes in those particular circumstances. Their Honours concluded that ss 85ZS(1)(d)(ii) and 85ZM of the Crimes Act precluded the Minister from taking into account any of the "findings of guilt" made against the respondent or the fact that he had been charged with the offences he committed when he was a child.

The Children Proceedings Act

Relying on s 85ZR, s 85ZS and Thornton'', the plaintiff contended that under a "State law", namely the Children Proceedings Act, he was "taken never to have been convicted" of (at least) the offences for which he was sentenced by the