Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/18

Beech-Jones J

convicted of" the offences for which he was sentenced by the Children's Court when he was under the age of 16 years.

The "convictions" and findings of guilt could not be considered

The plaintiff contended that, once it is concluded that he is taken never to have been convicted of the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for any purpose, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody). This contention should be accepted.

On behalf of the Minister, it was submitted that s 85ZR(2) is only engaged by a State law that deems a person never to have been convicted in circumstances where at one point in time they were convicted. The Minister relied on the judgment of Kiefel J, as her Honour then was, in Hartwig v PE Hack, in which her Honour held that the effect of a provision of State law that engages s 85ZR(2) must be that it "take[s] away the fact of [a] conviction, as a pardon might do" (emphasis in original).

This submission is inconsistent with Thornton. A common premise of the majority judgments in Thornton is that s 85ZR(2) is not restricted to a State law that sets aside the fact, or relieves the effects, of a previous conviction. Instead, s 85ZR(2) is engaged by a State law that prevents a finding of guilt being recorded as a conviction and provides that, at least for some purposes or in some circumstances, a person is not to be taken, or treated, as having been convicted. It is also a common premise of the majority judgments in Thornton that the phrases "particular circumstances" and "particular purpose" can include all circumstances and all purposes.

Two further matters should be noted about the Minister's reliance on Hartwig v PE Hack. First, a pardon, even one that is free and absolute (ie, free of