Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/20

Beech-Jones J

is treated or taken as having not been convicted. It follows that under State law, the plaintiff 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 all relevant purposes and in all relevant circumstances.

Further, the fact that Pt 2 of the Children Proceedings Act, of which s 14 forms part, operates in a curial context does not affect the absence of any limit on the purpose for and circumstances in which the plaintiff is taken never to have been convicted. The application of Pt 2 to "any court ... exercis[ing] criminal jurisdiction" and "any criminal proceedings before any such court" are words of expansion and not limitation. They confirm the application of Pt 2 to all such courts. The functions of making a finding of guilt then proceeding to and recording a conviction are reposed in courts exercising criminal jurisdiction and not administrative decision-makers. A legislative restriction on the circumstances in which a court not exercising criminal jurisdiction, or a body other than a court, would proceed to or record a conviction would be nonsensical.

The Minister's submissions also referred to the limited restrictions on the use of the finding of guilt found in s 15 of the Children Proceedings Act. It was submitted that this provision "says nothing as to whether regard may be had to a finding of guilt in relation to an offence committed by a child by an administrative decision-maker". The Minister contended that, unlike s 184(2) of the Youth Justice Act, which expressly stated that a finding of guilt is not taken to be a conviction "for any purpose", s 15(1) of the Children Proceedings Act does not prohibit consideration being given to findings of guilt by an administrative decision-maker. On this approach, the reference in the delegate's decision to the plaintiff's convictions in the Children's Court should be construed as references to findings of guilt and the delegate's reliance on these findings of guilt was consistent with Direction No 55, which does not limit considerations to a visa holder's convictions but includes a consideration of, inter alia, the visa holder's "offences", "conduct" and "criminal behaviour".

This contention elides the question of whether the Children Proceedings Act purports to preclude the use of the finding of guilt contemplated by s 14, in all or at least some circumstances and for all or at least some purposes, with the question posed by s 85ZR(2) of the Crimes Act, namely, whether the Children Proceedings Act purports to preclude such a finding of guilt being treated as a conviction in all or at least some circumstances and for all or at least some purposes. In relation to the former, s 15(1) precludes the use of the finding of guilt in criminal proceedings in some, but not all, circumstances and does not impose any restriction on its use for the purposes of making an administrative decision. However, in relation to the latter, the effect of the Children Proceedings Act is that such a finding is not to be treated or taken as a conviction for any purpose unless