Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton

No judgment structure available for this case.

[2023] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B42 of 2022

B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Appellant
and
ROSS THORNTON
Respondent

GAGELER J
GORDON J
EDELMAN J
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2023, AT 10.04 AM

Copyright in the High Court of Australia

MS A.L. WHEATLEY, KC: Thank you, your Honours. May it please the Court, I appear with my learned friend MR A.G. PSALTIS for the appellant. (instructed by Clayton Utz)

MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior MR G.J. REBETZKE for the respondent. (instructed by GTC Lawyers)

GAGELER J: Thank you, Mr Keim. Yes, Ms Wheatley.

MS WHEATLEY: Thank you, your Honours. Your Honours, the Full Court held that the Queensland statutory non‑recording of a juvenile conviction provision completely removed – that is, obliterated – the fact of the conviction, the finding of guilt, and the facts and circumstances of that offending, such that the Minister, on the consideration of a revocation decision under the character provision of the Migration Act, was prohibited from taking into account the finding – or plea of guilt – the fact of the conviction, and the facts and circumstances of the offending.

In doing so, the Full Court made the distinction between the materially identical – we submit – provisions in relation to adult offending and juvenile offending, in relation to the relevant statutory provisions which provide for the non‑recording of a conviction.

When regard is had to section 85ZR(2) and the work it seeks to do, and that is compared to each of sections 184(2) of the Youth Justice Act, and section 12(3) of the Penalties and Sentences Act, it is apparent, in our submission, that section 184(2) is not a State law which is caught by 85ZR(2) – and it was an error for the Full Court to so find.

The first issue in this appeal comprises two questions of construction. The first question is the proper construction of section 85ZR(2) of the Crimes Act. The second, and separate question, is what is the proper construction of section 184(2) of the Youth Justice Act. Then, once those construction questions are answered, it is necessary to determine whether or not section 184(2) is a provision which falls within the operation of section 85ZR(2) of the Crimes Act. Apart from the meaning of “conviction”, which we will come to in the context of section 85ZR(2), apart from the meaning of that term “conviction”, there does not appear to be much controversy regarding the first question. Nonetheless, in our submission, it is a necessary first step.

The answer to the two construction questions then leads to, as we have suggested, the application of those constructions, and that is necessary to consider whether or not the Minister took into account an irrelevant consideration when making his decision pursuant to section 501CA(4) of the Migration Act, that being a decision to consider whether or not to revoke the decision under 501(3A) of the Migration Act – which is sometimes referred to as a mandatory cancellation decision – of the respondent’s visa. The Minister in that context was not satisfied that the respondent passed the character test and was also not satisfied that there was another reason pursuant to section 501CA(4)(b)(ii) that “the original decision”, being that mandatory cancellation decision, “should be revoked”.

In the present case, we do accept that the Minister did consider as part of all of the relevant matters the facts and circumstances of the offending committed by the respondent when he was a juvenile and for which no conviction was recorded, and we will be taking the Court to the Minister’s reasons in those circumstances. That is, the Minister did take into account the fact of those convictions while also expressly recognising, at least in one paragraph, that there were no convictions recorded. In our submission, that was a consideration of the finding, or the acceptance of guilt, of those certain offences – again, as I have said, for which no conviction was recorded.

The primary judge in this case accepted the argument of the Minister that section 85ZR(2) of the Crimes Act was not engaged by the relevant provision under the Youth Justice Act, being section 184(2), following the decision of Hartwick v Hack, which we will come to. Hartwick considered the analogous provisions in the adult offending regime under the Penalties and Sentences Act (Qld), being section 12(3), and that decision held that that section, 12(3), did not engage section 85ZR(2). Section 12(3) related to the non-recording of a conviction and is not one which deems a person to have never been convicted. It is not one which treats the convictions as not having occurred. The primary judge considered that section 184(2) of the Youth Justice Act was indistinguishable from section 12(3) of the Penalties and Sentences Act, and we will come to each of those provisions.

The Full Court, however, held that section 85ZR(2) is engaged by section 184(2), in that that provision does remove or disregard the conviction altogether. The Full Court did accept the reasoning in the decision of Hartwig and did accept that section 12(3) of the Penalties and Sentences Act was not such a provision to engage section 85ZR(2), but found that section 184(2) of the Youth Justice Act was different. It was, on the Full Court’s reasoning, a provision which did completely remove – it completely disregarded the conviction altogether, as a pardon might do, to adopt some of the reasoning in Hartwig, while also recognising that the pardon may seem in an inapposite term to describe it. The Full Court placed significant reliance on what it described as a child‑centric approach to juvenile justice which was said to be manifest from the Youth Justice Act.

GAGELER J: Ms Wheatley, we have read the decision. We do not necessarily need a summary of it.

MS WHEATLEY: Thank you, your Honours. Your Honours, there is a couple of aspects, though, of the Full Court’s decision which I would like to emphasise in the course of then taking your Honours to the relevant provisions for those two construction questions. If I could briefly take your Honours, please, in the core appeal book, the reasoning starts from page – or the relevant reasoning from page 178.

GAGELER J: Could you give the paragraph numbers, please?

MS WHEATLEY: Yes, thank you, your Honour. From paragraph 12. I will not take your Honours through it, obviously, line by line, but the crux of the reasoning in our submission really culminates and is concluded in paragraph 36, which is on page 185.

EDELMAN J: Ms Wheatley, is there any need to paraphrase the statutory wording in section 85ZR(2)?

MS WHEATLEY: Sorry, in terms of the paraphrase which removes or disregards the conviction altogether, your Honour?

EDELMAN J: Yes.

MS WHEATLEY: In our submission, no, your Honour. We will come to the precise terms of 85ZR(2) to what, we say, it should be – how it should be construed. Could I also ask in terms of the context of paragraph 36 that your Honours also go to paragraph 18, which is at page 179 of the core appeal book. We do so simply because 36 seems to be of a shorthanded reference to take away the fact that the conviction, and 18 seems to expand upon that together with such facts and circumstances, which are necessary to provide the understanding of the offense. Thank you. Your Honours, could we then take you, please, to the relevant provisions of the Crimes Act which are in the joint bundle of authorities at volume 1, tab 3, page 68.

GORDON J: Would you mind just telling us which Act you are going to and which provisions? Some of us are working off a hard copy.

MS WHEATLEY: Yes. My apologies, your Honour.

GORDON J: That is fine.

MS WHEATLEY: It is to the Crimes Act and we will commence with section 85ZR.

GORDON J: Thank you.

MS WHEATLEY: Thank you. Your Honours will see that the heading in relation to this section is in Division 2, “Pardons for persons wrongly convicted, and quashed convictions”. The section itself is also headed “Pardons for persons wrongly convicted”. What we take from these aspects – and noting that it is within Part VIIC, again headed “Pardons, quashed convictions and spent convictions” is the focus on those three things in relation to Part VII of the Crimes Act. This Part does not deal with the non-recording of a conviction or, as it is termed in the Crimes Act, a discharge without conviction. A discharge without conviction under the Crimes Act is provided for in section 19B, which is within Division 1B in relation to – and in the joint bundle that is at page 37.

GAGELER J: So, you are saying that section 85ZR for its operation assumes there has been a conviction, are you?

MS WHEATLEY: Why I am hesitating in answering yes or no in relation to that question, your Honour, is that the term conviction is loaded, if you will. It has, obviously, many different meanings that it could take on, and in the context of 85ZR(2) it is important, as we will come to, to look at 85ZM, which also provides an inclusive definition of the word conviction.

GORDON J: Well, is that not your starting point? I mean, 85ZM, in effect, sets the scope of what is a conviction for this part and it has an expanded definition.

MS WHEATLEY: It does, your Honour.

GORDON J: It includes relevantly, possibly:

the person has been charged with, and found guilty of, the offence but discharged without conviction –

MS WHEATLEY: That is so, your Honour.

GORDON J: So that when we come over to deal with 85ZR, we must incorporate into the word “convicted” all of those possible aspects.

MS WHEATLEY: That is so, your Honour. And, if I may, that is our point. And why we then go to 19B, though, is to put 19B in a class, if I may, of provisions like section 184(2), like section 12(3) of the Penalties and Sentences Act. Those are provisions about the non‑recording of a conviction. They are actually caught up in the definition, as your Honours observed, in 85ZM(b), such that when it refers to “never to have been convicted”, what it also includes is, never have been convicted; that is, never have been:

charged with, and found guilty of –

but without the entry of a conviction. In our submission, if one is the subject of the operation of section 184(2) such that the conviction is not recorded, it is not the case that you have never been convicted within that extended definition; you have, in fact, been convicted.

GAGELER J: So, but – please continue.

MS WHEATLEY: Sorry, your Honour. I was just pausing. I was trying to think whether I had actually answered your Honour’s question.

GAGELER J: I am sure you will answer the question in the course of your submissions.

MS WHEATLEY: Thank you, your Honour.

GAGELER J: So, we are dealing with the construction of 85ZR(2) and we are trying to grapple with the consequence, for that purpose, of the definition in section 85ZM.

MS WHEATLEY: That is so, your Honour. Your Honour, one of the aspects we were going to highlight, and perhaps we will not go to it, but it is the concept of pardon. One of the purposes of these amendments to the Crimes Act, which we have referred your Honours to in the written submissions in terms of the explanatory memorandum, was also to provide a more beneficial approach in relation to pardons. At common law, as was discussed by Justice Heydon in Eastman, a pardon is in no sense the equivalent to an acquittal, but what these provisions and what these amendments to the Crimes Act sought to do was to actually remove the fact of the offending to give it a wider effect than what would have usually occurred under . . . . . at common law.

If we could come back then, though, to section 85ZR, at page 68 of the joint bundle, as your Honours would probably recall from the Full Court’s reasons, the court did not look at subsection (1), but in context, in our submission, it is important to look at that. Subsection (1) looks at or takes the position:

where a person has been granted a free and absolute pardon for a Commonwealth offence . . . because the person was wrongly convicted –

And then, if I may – in my words, or our words – seeks to apply that in a State context, so that one gets the benefit of that finding in that State context or in a foreign country. Subsection (2) does, in some ways, the other work. It provides that:

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 –

Then, in corresponding circumstances, that should be the same circumstance considered by the Commonwealth authority.

GAGELER J: In the present case, was it paragraph (a) or paragraph (b) that was engaged?

MS WHEATLEY: It is paragraph (b), your Honour. It is:

the person shall be taken, in any State . . . in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority –

And the definitions in 85ZL, which provide for what is a Commonwealth authority, would include the Minister.

GAGELER J: Did it matter where the Minister was at the time of making the decision?

MS WHEATLEY: No, we would not submit it does, your Honour. No.

STEWARD J: Then, Ms Wheatley, you may be coming to it in due course, but important controlling words in subsection (2) are the phrase:

in particular circumstances or for a particular purpose –

So, you need to know for State law purposes what those are to see whether there is a corresponding circumstance or purpose for Commonwealth purposes.

MS WHEATLEY: That is so, your Honour.

STEWARD J: So, it will help me to know what you say is the particular State circumstance or purpose here based on the provisions of the Youth Justice Act.

MS WHEATLEY: Well, what we do say is that the non‑recording of a conviction under section 184(2) that particular purpose is not the same. It is not the corresponding purpose for the Minister making his decision under section 501CA.

GAGELER J: Before you come to application of it to the Queensland provision, the stage of the submissions that you are at now is attempting to help us construe this provision in its own terms by reference to its language and legislative purpose.

MS WHEATLEY: That is so, your Honour. Your Honour, can we then come to – just before coming to those words of particular circumstances and particular purposes, can we also note, please, for context, that section 85ZS, when it seeks to apply section 85ZR, it does not differentiate between subsection (1) and subsection (2). It simply says that if you fall – or if section 85ZR applies. But it does use, again, that language of:

in particular circumstances or for a particular purpose, to be taken to have never been convicted of an offence –

and then it provides for the effect of section 85ZR in the balance of that provision.

GORDON J: It is quite important, is it not? Do you propose to take us to subparagraph (d)(ii) of that section? Subparagraph 1(d)(ii). So, we have:

Subject to Division 6 –

which I assume you will come to in a moment. This is 85ZS. So, we have, subject to Division 6, that a person is, as a result of the application of 85ZR:

in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence –

And do you accept that (d)(ii) extends, in those circumstances, to your client?

MS WHEATLEY: Yes, we accept that this provision would apply to the Minister if the circumstances and if the requirements of 85ZR are met ‑ ‑ ‑

GORDON J: Thank you.

MS WHEATLEY: ‑ ‑ ‑ so that if the State law provides in particular circumstances, and the Minister considering it in corresponding circumstances – yes, the provision would apply to the Minister. There is no carve‑out as there is under section 85ZZH. If I may, your Honour, Division 6 is about the exceptions for when this applies.

GORDON J: The exclusions, yes.

MS WHEATLEY: Yes.

GORDON J: Do we draw anything from the fact that there is a distinction drawn in relation to the Migration Act between Division 2 and Division 3 in the exclusions? So, if you look at the exclusions under Subdivision A about working with children, then that does not apply to Divisions 2 and 3 – when we look at it in relation to Subdivision AA, persons with disability, it is Divisions 2 and 3. But when we get to what I will call the more general exclusions, it is only Division 3, which tends to suggest that the exclusions that are provided for continue – wherever they are in the State – continue to apply to the Migration Act and the Minister’s decisions under that Act. Is that a fair analysis of it?

MS WHEATLEY: Yes, your Honour. Yes.

GORDON J: Subject to the exclusion for the migration agent, but ‑ ‑ ‑

MS WHEATLEY: For the agents, yes.

GORDON J: We find that by 85ZZH(d), do you accept that?

MS WHEATLEY: Yes, your Honour, we do.

GORDON J: So, we start from the premise that we have got this provision which you are helping us to construe, subject to an exclusion which, on its face, recognises that it extends to decisions made by the Minister under the Act – on its face.

MS WHEATLEY: Yes, that is so, your Honour. If the requirements of the provision are met, it would apply – and we do accept that, yes.

GAGELER J: Just so I understand how section 85ZS fits in ‑ ‑ ‑

MS WHEATLEY: Yes, your Honour.

GAGELER J: ‑ ‑ ‑ is it subparagraph (d)(ii) of that which is the provision that has operative effect on the Minister’s decision‑making? Is that the way it works? You first find section 85ZR engaged and then it is that provision that governs the way in which the Minister deals with the information? Is that your point?

MS WHEATLEY: Sorry, your Honour, if you could bear with me for just a moment. Yes, your Honour. Yes.

GAGELER J: Thank you.

MS WHEATLEY: Thank you.

STEWARD J: If that is so, then it will have to be read with (d)(i), which is the prohibition on someone disclosing, but, importantly, without the person’s consent. Here, on four occasions in the submissions made to the Minister, the juvenile offending was disclosed, presumably, with the person’s consent. So, that question then becomes, what does that mean when you come to interpret (ii)? And what are the circumstances?

MS WHEATLEY: That is so, your Honour. But, if we may, that assumed that 85ZR does apply.

STEWARD J: Of course, yes.

MS WHEATLEY: Yes. And our submission primarily commences from that it does not apply because section 184(2) is not a provision which engages its operation. So, although we take your Honours to the provisions because it is necessary to provide the context for section – sorry, your Honour?

GAGELER J: We are having difficulty hearing you, I think.

MS WHEATLEY: My apologies, your Honour, I will try and speak up. I feel like I am back on videoconferencing. My apologies, your Honour.

STEWARD J: I understand the point.

MS WHEATLEY: Yes, thank you, your Honour.

GAGELER J: So that takes us back to 85ZR(2).

MS WHEATLEY: That is so, your Honour. I appreciate we have jumped around a little bit, but I would like to take your Honours to 85ZM and the meaning of “conviction” in this context. I appreciate we have had some discussion about it, but I think it is important for the construction of 85ZR. So, for the purposes of this part, a person is taken to have been convicted and relevantly for the circumstances of this case, subsection (b) includes:

charged with, and found guilty of . . . but discharged without conviction.

We have referred to, in the written submissions the decision of – and excuse my pronunciation if I get this wrong – Frugtniet at paragraph 7 where it is explained that the finding of guilt is without an entry of conviction in relation to that concept of discharged without conviction. The other members of the Court dealt with that at paragraph 36 and used the statutory language, being “discharged without conviction”. As we have submitted, that language, though, of being discharged without conviction, in our submission, is in that class of provisions relating to the non‑recording of a conviction.

Therefore, if we come back to 85ZR(2), which is at page 68 of the bundle, in our submission, what that provision seeks to encapsulate is a circumstance where:

under a State law . . . in particular circumstances or for a particular purpose . . . never to have been convicted –

So, if one has never been convicted, looking to 85ZM(1)(b), that means someone has never:

been charged with, and found guilty of –

but without the entry “of a conviction”. In our submission, where section 184(2) has been applied to an offender it will not be the case that they have never been found or never been convicted. They, in fact have been convicted within that extended meaning of “conviction”.

GAGELER J: Well, you might be right, but you are reading section 85ZM as if it were a definition of the word “conviction”. That may be the way it should be read; I am not sure. Literally, it has a deeming effect about the way in which a person is to be understood to have been dealt with in the past.

MS WHEATLEY: That is so, your Honour. The language of “taken to have been” is a deeming provision, yes, we would accept that.

GAGELER J: Well, is it correct, then, to treat it as a definition of the word and read it into section 85ZR(2)?

MS WHEATLEY: We would submit that it is still appropriate to read in the meaning of it, given the heading to 85ZM, which does say “Meaning of conviction”. We appreciate it is not in the definitions provisions, but it is providing a meaning of the term “conviction” – and even if the words themselves are not to be read in, if I may, in the Kelly style where Justice McHugh talks about reading in the definitions – even if we should not read it in, certainly as a matter of context when we look at what 85ZR(2) is directed to and the convictions that it is directed to, in our submission, it would capture that concept, that extended meaning of “conviction” from 85ZM.

GAGELER J: Well, it would certainly capture a person who has been convicted, according to that extended meaning, if the State law, on its proper characterisation, says that the person is taken never to have been convicted.

MS WHEATLEY: Yes.

GAGELER J: I am just not quite sure of the way you are putting it, I am afraid.

MS WHEATLEY: No. Your Honour, with the way that the language is drafted in terms of is “taken never to have been”, because it is phrased in the negative when one then considers whether or not a conviction has been recorded, or that extended meaning of “conviction”, one comes across double negatives and it becomes difficult ‑ ‑ ‑

EDELMAN J: Effectively, you read section 85ZM as though one crossed out all the words and said:

For the purposes of this Part, a person shall be taken to have been convicted of an offence if –

and you replace them with the words, a conviction means. It is a pretty major rewrite, is it not?

MS WHEATLEY: Your Honour, although your Honour can see me nodding as to that proposition, we are not suggesting that one should rewrite that section, or that provision.

EDELMAN J: Another way to read it is to mean exactly what it says, putting aside the heading, that 85ZM tells you when a person is taken to have been convicted, and in those circumstances section 85ZR then operates to say, well, a person would be taken to have been convicted in those circumstances, but in the circumstances of 85ZR a person shall never be taken to have been convicted.

MS WHEATLEY: Well, if we may, your Honour, we agree with the first half of that proposition. One looks at 85ZM and that is when a person has been convicted. So, if we consider that aspect, a person has been convicted where they have been “charged with, and found guilty of” but without entry of conviction or discharged without conviction.

GAGELER J: Can we just take the very simple case to try to work out how these provisions fit together ‑ ‑ ‑

MS WHEATLEY: Thank you, your Honour.

GAGELER J: ‑ ‑ ‑ of somebody who gets convicted of murder and then subsequently pardoned. So, we are within section 85ZM(1)(a) territory, the person is taken – perhaps I should not stop you from ‑ ‑ ‑

MS WHEATLEY: No, your Honour, perhaps – and I am loathe to suggest a different example, but perhaps rather than pardon, just given the common law sense and how that still exists in Queensland, perhaps is an acquittal a better example, particularly in the way – for example, in the authorities we have referred to a case of EVX20, where the person was convicted of murder at first instance but then the Queensland Court of Appeal acquitted the person on the appeal, and in that his Honour Justice Logan was considering not in terms of these provisions but under section 501(10), but whether or not that person was “convicted” in that sense.

My only hesitation about the word “pardon”, your Honour, is because it has different meanings; and whether or not that would be murder in the Commonwealth guise, I ‑ ‑ ‑

GAGELER J: So, in your example, you have someone who is taken to have been convicted by reason of the conviction at trial.

MS WHEATLEY: Yes.

GAGELER J: So, that is 85ZM(1)(a), and then, the Criminal Appeal statutes, which provided for the Court of Criminal Appeal to set aside the conviction and enter an acquittal, has the effect, that you say, of the person being taken never to have been convicted.

MS WHEATLEY: Yes, your Honour.

GAGELER J: All right.

MS WHEATLEY: And, even though when one looks at the history at trial, that person was convicted, in our submission, the acquittal by the Court of Appeal in that example does wipe away the fact of the conviction, different to the recording of the conviction on someone’s criminal history.

GAGELER J: So, let us go on then to 85ZM(1)(b); so the person has been found guilty but discharged without conviction. By force of section 85ZM, the person has taken to have been convicted ‑ ‑ ‑

MS WHEATLEY: Yes.

GAGELER J: ‑ ‑ ‑ and then, how does section 85ZR(2) apply in respect of that person?

MS WHEATLEY: In our submission, what 85ZR(2) requires that is that under the State law, the person is taken never to have been convicted; not that they have been convicted within the extended definition or the extended meaning.

GAGELER J: So, what do you have to find in the State law to engage this? Can you explain that, please?

MS WHEATLEY: Yes, your Honour, what you have to find in the State law is that the person is taken to have never been convicted. If we could take our acquittal example, in that circumstance, in our submission, the acquittal by the Court of Appeal would mean under the State law of Queensland, the person is taken to have never been convicted of the offence.

GAGELER J: So, it is not enough to point to the State law under which the person was discharged without conviction, you say?

MS WHEATLEY: Sorry, your Honour, I am just thinking about the words “it is not enough”. What we say is that the State law, which provides for the discharge without conviction, or the non-recording, that is a circumstance where a person is convicted.

GAGELER J: We follow that.

GORDON J: It depends upon what the section says, does it not?

MS WHEATLEY: Yes, it does, your Honour, and we will ‑ ‑ ‑

GORDON J: So, the question for Justice Gageler is more direct. So, are we just focussing then on the State law for the engagement of 85ZR(2), or are we focussing on other things as well? Because the example you gave would seem to me that it was more than just the law, the statutory provision.

MS WHEATLEY: The circumstances of this case relate to a particular statutory provision, which we will come to. The example in terms of seeking to construe what 85ZR(2) might apply to in the State law would go further than statutory provisions, in our submission.

EDELMAN J: At the moment, I cannot see how your example even invokes section 85ZR. You seem to be assuming that the meaning of the word “conviction” in section 85ZM(1)(a) is simply the fact of a conviction, no matter what happens subsequently. But if “conviction” means a person who has been convicted under a conviction that remains recorded, then 85ZM just does not apply to your example. A person whose conviction is quashed is not a person who has been convicted.

MS WHEATLEY: No, that is so, your Honour. Sorry, our submission was not that that example, the acquittal example, falls within the meaning of 85ZM. But it does still fall within the meaning of section 85ZR(2) insofar as it provides that the State law, in particular circumstances or for particular purposes, is taken never to have been convicted of an offence.

EDELMAN J: But why do you need section 85ZR(2) if there is no conviction for the purposes of State law or Commonwealth law?

MS WHEATLEY: Your Honour, sorry, perhaps we are at cross‑purposes or I am misunderstanding but, in our submission, 85ZM is not an exclusive provision in terms of what the meaning of “conviction” is in 85ZR(2).

GORDON J: Is your short point that when I read 85ZR(2) and I read the word “conviction”, it has its own meaning for its own operation within that provision, that 85ZM is not exclusive, it just adds in extra bits as part of the analysis. That is not putting it very legalistically, I know, but that is the argument.

MS WHEATLEY: Yes.

GORDON J: I see.

MS WHEATLEY: It is an inclusive provision. Yes, your Honour.

GORDON J: And you accept that the taking to have been convicted and those elements which extend to include:

charged with and found guilty of the offence, but discharged –

are capable of being picked up by 85ZR(2)?

MS WHEATLEY: Yes, your Honour. Yes, that is our submission, yes.

GAGELER J: How? I am just really not following how.

MS WHEATLEY: Your Honour, if one goes back to the commencement of Part VII, which is on page 61 of the joint bundle, Division 1 is headed “Interpretation and application” of the Part such that 85ZL provides particular definition provisions and then 85ZM and ZN provide the meaning, or in our submission, the extended meaning of those terms, such that those terms are meant to apply with that inclusive extended application to 85ZR(2), amongst the other Parts, but relevantly to that provision such that the word “conviction” in 85ZR does pick up these concepts from 85ZM.

GAGELER J: All right, that is reading it as a definitional provision, I understand.

MS WHEATLEY: Yes. Your Honours, there is some support for reading it as a definitional provision from the explanatory memorandum – and we have referred to that in the written submissions, which refers to the extended definition of “conviction” in that sense. But, your Honour, we would accept that it is not as is done earlier in that Division in ZL – that it is not set out as a definition as such.

GAGELER J: What can you tell us about the purpose of section 85ZR(2)?

MS WHEATLEY: The purpose, in our submission, is – as we attempted to commence with – when one looks more broadly at what subsection (1) does and then looks at the other side – if I may – of the equation as to subsection (2) – such that subsection (1) was to provide an expended scope for pardons under Commonwealth law such that a pardon would then be taken to completely wipe away – as was discussed in the Eastman decision that we earlier referred to – and that, if that has occurred in a Commonwealth setting, then one should be given the benefit of that in the application of the relevant State or Territory – or the foreign country – in relation to how that was considered.

In our submission, what subsection (2) does is seek to look at it from the other way, such that, if you have the benefit of never being convicted under a State law, when a corresponding circumstance is considered by the Commonwealth authority, you have the benefit of never have been convicted in that State law – in that Commonwealth setting.

EDELMAN J: So, a State law that said, to make it easy – a State law that said that a person in particular circumstances must be taken never to have been convicted of this offence would then be picked up by 85ZR(2)?

MS WHEATLEY: Yes, your Honour.

GORDON J: That finds support – does it not, I think – from 85ZP, which talks about the application of the Part. Subsection (3) says:

Nothing in this Part authorises a person or body to disclose or take into account a conviction of an offence –

and as I now understand your submission, “conviction” in the extended form ‑ ‑ ‑

MS WHEATLEY: Yes, your Honour.

GORDON J: ‑ ‑ ‑ so, all the possible ways in which conviction might be considered – including findings of guilt but not a recording of conviction
if to do so would contravene a State law.

MS WHEATLEY: Yes. That is so, your Honour.

GORDON J: So, we are back to accepting those two propositions, which brings focus, does it not, then, to the State law.

MS WHEATLEY: Yes, it does, your Honour. Thank you, your Honour, and I was just about to take your Honours to ZP, but thank you. Your Honours, could I then move, please, to the provisions of the Youth Justice Act.

STEWARD J: Just before you do so, can I ask one more question?

MS WHEATLEY: Yes.

STEWARD J: The difference in language between ZR(1) and ZR(2) – ZR(1) talks about:

a person has been granted a free and absolute pardon –

because of a wrongful conviction. Subsection (2) does not use that language, it uses broader language. Do you say that is because it is trying to deal with events or occasions which are analogous to a grant of:

a free and absolute pardon –

but does not use that language because it has to cover all sorts of laws, including foreign laws?

MS WHEATLEY: Yes, exactly, your Honour.

STEWARD J: So, do you say the circumstances of the language of (1) confines or limits the language of (2)?

MS WHEATLEY: Informs.

STEWARD J: Or informs? Yes.

MS WHEATLEY: Informs. In a contextual basis. Particularly as we started with, your Honour, in relation to what does this Division look at. It looks at pardons, quashed convictions, and spent convictions.

STEWARD J: And you would say that because (1) is looking at a case where the Commonwealth does that, and what are the circumstances, it would be odd if there was different bounds of application where a State or foreign law does something analogous.

MS WHEATLEY: That is so, your Honour.

STEWARD J: It is the flip side.

MS WHEATLEY: It is the flip side.

STEWARD J: Yes, I see.

MS WHEATLEY: I was trying not to use the term “flip side”, I was trying to say the other ‑ ‑ ‑

STEWARD J: That is all right, I am allowed to use it.

MS WHEATLEY: Thank you, your Honour. I appreciate that, thank you. Your Honour, it is exactly as, if we may, your Honour has suggested. It is to encompass State laws and foreign laws, which might be in different terms. But as we have already observed, even in – particularly, say, in Queensland, a pardon in Queensland does not operate in the same way as the pardon under Commonwealth law does now, under section 85ZR(1), such that if one did use the term “pardon” in subsection (2) that would be something different to what is sought to be encapsulated in subsection (1).

GORDON J: I do not know about that. Can I just put it in a different way?

MS WHEATLEY: Thank you.

GORDON J: My last point. One of the reasons why 85ZR(1) was, when I read the parliamentary debates to change was actually to make it match 85ZR(2) because of what you recognised was that the gap created by the “pardon”. In fact, it was in a sense to try and make it read as if it was, had never been convicted at all. So, it may very well be that the language and the breadth of language in (2) is actually consistent with the second reading speech, the way in which you read and inform subsection 1. You do not think it matters to your argument, but ‑ ‑ ‑

MS WHEATLEY: No.

GORDON J: ‑ ‑ ‑ that flip side, but not “flip side”, probably in a way in which you – they put to me.

MS WHEATLEY: Perhaps we should put it in this way, your Honour: of contextually relevant to construe the provision.

GORDON J: Done. Thank you.

MS WHEATLEY: Thank you, your Honour. Your Honour, might we then move, please, to the provisions of the Youth Justice Act. Your Honours, can we start, please, in the joint bundle at volume 1, tab 5 at page 297.

GAGELER J: Could you give us the section number, please?

MS WHEATLEY: Yes, thank you. That is section 184. It will be necessary to go to other provisions, obviously, but we will start here, if we may. Section 184(1) provides, in considering the decision, my words:

In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including –

The matters that are listed. And then subsection (2) refers to:

Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.

Your Honours, we have dealt with, in some detail, most of the language aspects in the written submissions, and we propose to take your Honours more to the context of this provision in the Act in the course of these oral submissions. In that sense, can we also then take your Honours to section 183. Section 183 provides, in subsection (1), the starting point, and that is:

a conviction is not to be recorded against a child who is found guilty of an offence.

There are a couple of things in our submission which are to be taken from that. One, it is in relation to a child who is found guilty, such that the adjudicatory process, the decision, the court finding of guilt, or found guilt, has already occurred. But the legislation then enshrines a starting point in relation to whether or not a conviction should be recorded, that, generally, it should not be recorded.

GORDON J: It is the default provision.

MS WHEATLEY: It is, thank you, your Honour. Your Honours, then subsection (2) provides that:

If a Court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

Your Honours, can we go to those provisions, section 175; they are on page 289 of the joint bundle. It is important, in our submission to note 175 commences with:

When a child is found guilty of an offence –

such that it is already premised upon that finding, or that a child has been found guilty of the offence.

STEWARD J: So, under this regime, sentencing takes place regardless of whether a conviction is recorded or not.

MS WHEATLEY: Yes, the conviction is part of the sentencing process, or sentencing mechanism, we would submit ‑ ‑ ‑

STEWARD J: I see. It is an additional sentence, on top of 175. Yes, I see.

MS WHEATLEY: ‑ ‑ ‑ that is so. Yes, thank you, your Honour. Your Honours, subsections (a) and (b) to “reprimand the child”, and (b):

order the child to be of good behaviour for a period not longer than 1 year –

in our submission, are at the lower end of the sentencing options that could be imposed upon a child. Nonetheless, they expressly recognise that in considering those sentencing orders, it is in circumstances where a child has been found guilty of the offence.

So, if we can come back then, please, to section 183, as we just considered, subsection (2), “a conviction must not be recorded” when a child is found guilty of and sentenced to those matters. Subsection (3) in section 183 provides that:

If a Court makes an order under –

those provisions, again, it is still under section 175(1). And so, in our submission, it still incorporates the child has been found guilty of an offence, then it provides the Court with a discretion that:

the court may order that a conviction be recorded or decide that a conviction not be recorded.

For completeness, your Honours, we should also take you to section 176A, which is at page 293 of the joint bundle. It expressly, again, provides that the section applies if:

a child is found guilty of a graffiti offence –

And, again, in our submission, that language picks up that the child has already been found guilty of the offence and it is then as part of the sentencing mechanism to consider whether or not an additional imposition of sentence will be made to record the conviction. And it expressly delineates between what we might see as matters at the lower end of the sentencing spectrum, subsections (a) and (b), and to the other matters where it then provides the discretion of whether or not a conviction can be recorded.

Therefore, in our submission, section 183, when construing 184(2) is relevant for many reasons. One, it provides the power to actually record or not record the conviction in subsection (3). That is the power that is to be exercised under 184 and that is in the context where it refers to the other provisions where the child has been found guilty of an offence.

EDELMAN J: Does your submission ultimately then come down to the point that under 184(2), the concern of the provision is not with findings of guilt, it is just with the formal recording of the conviction?

MS WHEATLEY: That is so, your Honour.

EDELMAN J: In other words then, the formal recording of the conviction cannot be taken into account for any purpose, but one could always take into account the finding of guilt before the formal conviction?

MS WHEATLEY: That is so, your Honour.

EDELMAN J: A pretty empty provision – one just disregards the formal recording and always takes into account the findings of guilt against the child?

MS WHEATLEY: Your Honour, if we may, it has work to do in the context, as we will come to, in Queensland or the Rehabilitation Act, and – sorry, that is a shorthanded reference to the Criminal Law (Rehabilitation of Offenders) Act 1986 where that expressly provides for matters where convictions are not recorded, so that, in filling in job applications or the like you are not required to disclose certain matters. So that, it does have work to do, in our submission. It is not a provision without worth, which is why it is an important consideration in the sentencing context as to whether or not to record the conviction.

But what we say is that what it does not do is seek to – I will not use the word “expunge” – it does not seek to obliterate from your history that you have been found guilty of an offence, or the facts and circumstances of the offending. It is not akin to our earlier example of the acquittal in the Court of Appeal after being convicted of the murder. Your Honours, the provision in section 184(2) refers to the finding of guilt and, as we referred to in the written outline, that term is defined in the Youth Justice Act ‑ ‑ ‑

EDELMAN J: Just to come back to your previous answer, are you able to give me an example of any circumstance either under legislation or otherwise, where 184(2) would have that substantive effect? You gave an example of job applications, for example. A provision which required disclosure of convictions on job applications may run into exactly the same argument that you are making in relation to the Crimes Act, that one might say, well, the reference to conviction is there, the concern with convictions is findings of guilt, so therefore it is a requirement to disclose findings of guilt. Section 184(2) is only concerned with the formal conviction. You still need to disclose the fact that you have been found guilty of all of these offences. Where is a provision that is only concerned or only has its purpose, the formal finding of a conviction, as opposed to a concern with the finding of guilt?

MS WHEATLEY: Your Honour, can you bear with me for just a moment? Sorry, your Honour, may I come back to that in just a moment?

EDELMAN J: Certainly.

MS WHEATLEY: Thank you.

GORDON J: Sorry, just to add to the pile, but can we just stop and think about, for a moment, the purposes of the Youth Justice Act? Do you propose to take us to the purposes of them, including section 148, where evidence is not able to be admitted?

MS WHEATLEY: Yes, your Honour.

GORDON J: So, if you step back from it and look at the purpose and context of it, is not one of it these, including the charter, which is set out in Schedule 1, looking at saying, the child is a child, there is a line to be drawn, you are permitted to take into account findings of guilt without conviction when you come to sentence the child at the end, but not the adult. Do they not all inform the way in which we are to look at 184(2)?

MS WHEATLEY: Your Honour, we are coming toward those provisions, if we may, and if your Honour can bear with me?

GORDON J: I will, of course.

MS WHEATLEY: Thank you, while we step through just a couple of other matters to put it in its proper context. The first one I was going to take your Honour to – and I will just make another note about that to make sure I come back – but, your Honour, we were going to look to the definition of “finding of guilt” under the Youth Justice Act, this is at page 320 of the joint bundle, it is in Schedule 4 to the Youth Justice Act, a:

finding of guilt means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.

Your Honours, in our submission, it is important that when one looks to section 184(2), it refers to that term “a finding of guilt”. In our submission, that would bring in with it the definition. Then it refers to “without the recording of a conviction”, “conviction” is not defined under the Youth Justice Act. And then it says:

is not taken to be a conviction for any purpose.

If that second reference to “conviction” was meant to wipe away the finding of guilt, in our submission it would have used the defined term, such that it would read, a finding of guilt without the recording of a conviction – hence placing it on someone’s record – is not to be taken to be a finding of guilt for any purpose.

But, in our submission, it does not do that. That second reference, in our submission, is a reference to the record of conviction. It is not taken to be a record of the conviction and that is why it uses the different language. It is after the adjudicatory process that we have looked at, your Honours, in terms of section 175, 176 and 176A.

GAGELER J: Another way of looking at it is that the finding of guilt as a finding of fact has founded the orders that have been made under section 175. But it is not, unless there is the recording of a conviction, to be treated as having determined criminal liability.

MS WHEATLEY: That is another way that it could be interpreted, your Honour, but in our submission that is not what the provision is directed to.

GAGELER J: Why would it not be directed to that in the context of youth justice?

MS WHEATLEY: Your Honour, what we submit is – as we will come to in the Penalties and Sentences Act – it uses very similar language, and what it is meant to be about, it is meant to pick up, as it does in the Rehabilitation Act, your criminal history, the criminal history record, such that you are taken not to have been convicted and you have the benefit of not having to disclose those matters in the context of that provision, but it is not such as to completely obliterate your history from those matters.

In that context, your Honours, could I take you briefly to the comments of his Honour Justice McPherson in Gallagher where his Honour looks at – it is in relation to section 12(3) of the Penalties and Sentences Act, but it ‑ ‑ ‑

GORDON J: Before you do that, I would really be most helped, at least from my perspective at some point – and if you propose to do it after, then that is okay – but to finish with this Act, because it is an Act which, as Justice Gageler says, is dealing with youth justice.

MS WHEATLEY: Absolutely.

GORDON J: The Schedule – the charter in Schedule 1 makes it abundantly clear, I think, that it is trying to deal with youth justice in a way which – to pick up the language – makes them accountable but encourages them to take responsibility, but at the same time tries to draw a line in a way which means that is juvenile behaviour as distinct from adult behaviour. The reason why I think it might be quite important in the way in which you then read 184(2), in the way in which Justice Gageler put it to you, is because under section 148 you cannot lead evidence of any of those matters except in the sentencing of a child.

MS WHEATLEY: That is so, your Honour. Your Honour, just before we leave the concept of 184 with 175 and 176, in our submission, it is important that those provisions use different language. They say a child is found guilty of an offence. They do not bring with it that finding of guilt definition, and that will become more stark as we come to the other provisions.

Perhaps in this context, your Honours, could we start at page 264 of the joint bundle, which is Division 11 “Child offenders who become adults” from section 132. We start here, your Honours, because when one then looks to sections 140 and 141, which expressly provide for when an offender must be treated as an adult even if they have committed the offence as a child, in our submission, there is not perhaps this bright dividing line that might be thought apparent that upon the day of turning 18, one then automatically is under a different regime, although you would be under the Penalties and Sentences Act, and we accept that, but what it is, is that there are express provisions in the Youth Justice Act which make the child offender who has become an adult during the course of matters to be treated and to be sentenced as an adult.

EDELMAN J: Is that not really the exception then that proves the rule? The fact that you have provisions like section 140 and 141, it tells you that outside those exceptions we are in a very particular regime that is different and in very significant respects from adult offending.

MS WHEATLEY: Well, we submit not, your Honour. We submit what that does is it actually provides a consistent regime for dealing with offenders, particularly in relation to the non‑recording of convictions where offenders, whether they are juvenile offenders, whether they cross over that line in terms of those provisions, or whether they are adult offenders, the ‑ ‑ ‑

GORDON J: So, I accept, even if you are right about that – and I am not suggesting that I have a view about it – but how do you deal with 148(1)? It says:

In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty . . . if a conviction was not recorded.

It is abundantly clear that it is not just the conviction that is of concern; it is the finding of guilty. When you read that with 184(2), I find it difficult to understand how that does not sit together. Those two provisions must not be read together.

MS WHEATLEY: Your Honour, our submission is this: if the work that section 184(2) did was to obliterate that the offender was found guilty, there would be no need for section 148. It would have already been done by section 184(2), because on the Full Court and the respondent’s construction that is the work of section 184(2). It obliterates it from your history because it is not recorded. Not just that the conviction is obliterated, but all the facts and circumstances of the offending. You are taken to have never been convicted, never to have been found guilty, simply because there is no recording of the conviction.

If that construction, in our submission, is correct, then there is no work, and there would be no need for section 148. What section 148 does, in our submission, is recognise that in proceedings – that is, in proceedings “against an adult for an offence” – there is a rule about the admissibility of evidence about the child having been:

found guilty . . . of an offence if a conviction was not recorded.

In our submission, that is how those provisions work together. It is also of note, in our submission, that section 148(1) refers to:

was found guilty as a child –

and then says:

if a conviction was not recorded.

It does not seek to pick up the definition of finding of guilt.

EDELMAN J: What is the relevance of – or what are the provisions in section 15 of the Evidence Act 1977, and section 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act?

MS WHEATLEY: Sorry, your Honour, I will have to put that on my list. I do not know that those provisions are in the joint bundle.

EDELMAN J: They are the ones that are referred to in subsection (2).

MS WHEATLEY: Yes, no, I appreciate that they are referred to in there, your Honour. But the Criminal Law (Rehabilitation of Offenders) Act, section 5 is in the bundle, and that is in relation to the provision I was referring to earlier, which talks about if the conviction is not recorded, you are not obliged to disclose it. That provision applies even though the evidence would be otherwise admissible under those provisions. I am not sure I have actually answered that, your Honour. I am sorry. Sorry, it is in the bundle. Just bear with me for a moment. Your Honour, in terms of the Rehabilitation Act, it is in volume 2 of the joint bundle at page 363.

JAGOT J: Sorry, what item number is it?

MS WHEATLEY: Sorry, your Honour, it is at ‑ ‑ ‑

GORDON J: Tab 10.

MS WHEATLEY: ‑ ‑ ‑ tab 10. Thank you.

JAGOT J: Thanks.

MS WHEATLEY: I have boldly attempted to go electronic as well, but I am not sure that it is working as well as I had hoped. Subsection (3)(b), your Honours will see, provides that:

Subsection (2) does not apply –

which is the provision I was earlier referring to about not requiring the disclosure about a person’s criminal history. Subsection (3), though, says that:

does not apply –
. . .
(b)in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings –

If we then read that back in with section 148(2), it is providing that subsection (1) applies despite those provisions saying it would be otherwise admissible. So, the point about section 148(1) is that the evidence is not admissible. In our submission, that would not be required if section 184(2) did the work that the Full Court held it did.

EDELMAN J: Could you read 148 with 184 as operating in a way that 184(2) effectively removes all the legal consequences of the finding of guilt, and section 148(1) then removes the evidential consequences of the fact of the finding of guilt?

MS WHEATLEY: No, your Honour, we would not. Section 184(2) is not directed to all of the legal consequences in relation to the finding of guilt. In our submission, it is directed towards the non‑recording of the conviction, which is then picked up by sections like section 5 of the Rehabilitation Act.

EDELMAN J: I see.

MS WHEATLEY: Thank you.

JAGOT J: Sorry, I am a bit – does this Act have anything to do with a finding at all? A finding of guilt against a child offender at all, where no conviction is recorded – this Criminal Law (Rehabilitation of Offenders) Act?

MS WHEATLEY: Yes, your Honour. In our submission, it does apply to both circumstances where there is the non‑recording under the Youth Justice Act and under the Penalties and Sentences Act. We are encouraged by that meaning because, when one looks at – this is in the joint bundle volume 2 page 361 – in relation to the definition of “rehabilitation period”, in subsection (a), it expressly refers to:

a person who in relation to that conviction was not dealt with as a child –

JAGOT J: I know, but then (b) is:

where paragraph (a) does not apply –

but only for a:

conviction recorded against a person –

So, if you just have a finding a guilt, there is no rehabilitation period for you, because it has not been recorded at all, and it is not part of your criminal history – only relates for recorded convictions. I am just not sure – frankly, from my point of view – what this Act at this stage has to do with you if you are a child who had a finding of guilt but no conviction recorded.

MS WHEATLEY: If your Honour can just bear with me for a moment ‑ ‑ ‑

JAGOT J: Anyway, I do not need an answer; I am just querying.

GAGELER J: Ms Wheatley, it is our practice to take a 15‑minute morning adjournment. I note that your original time estimate for the presentation of your argument was 1.5 hours. I suspect that that is running a little over time at the moment.

MS WHEATLEY: I suspect it is, your Honour.

GAGELER J: We will take the 15 minute adjournment and you can possibly take on board the questions that you have been asked. By my estimate, you are up to paragraph 6(c)(ii) of your outline. You may wish to recapitulate a couple of points, but I think that is where we are at, at the moment.

MS WHEATLEY: Thank you, your Honour.

GAGELER J: Thank you. We will take a 15 minute adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

MS WHEATLEY: Thank you, your Honours. Your Honours, in relation to your Honour Justice Jagot’s question regarding whether or not the Rehabilitation Act – shorthanded reference – applies, can we refer your Honour to our written submissions at paragraph 48, and particularly footnote 44, where we have referred to Queensland Court of Appeal decisions where it has been applied in that context. And we did take your Honours to some of the definitions and, in our submission, the fact that the Youth Justice Act itself says despite those provisions, these provisions apply, we say, all supports a construction that it does apply to both then Youth Justice Act and the Penalties and Sentences Act in relation to the non‑recording of a conviction.

Your Honours, in relation to your Honour Justice Edelman’s question about provisions which provide for the nondisclosure, the best example, in our submission, is from the Rehabilitation Act in section 5, and when one looks to section 5(2) and its reference to:

A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history –

when one reads in the definition of criminal history, which is provided – apologies, your Honour, I am in volume 2 of the joint bundle at tab 10, page 361 – “criminal history” is defined to mean:

means, in relation to any person, the convictions recorded against that person in respect of offences.

And, in our submission, that is the work that is sought to be done by those provisions in relation to the non‑recording of convictions. We were proposing – but in the interests of time, we will not – to take your Honours to the decision of Gallagher and his Honour Justice McPherson’s comments, but what we will do is just highlight an observation from his Honour where he talks about it in the context of section 12(3) of the Penalties and Sentences Act and the work to be done of the non‑recording of a conviction, and says that the provision does not permit:

a person to misrepresent the true state of affairs –

In our submission, that is correct and should be adopted. It is not about obliterating the facts and circumstances of the offending from a person’s history. The non‑recording of the conviction is about the person’s criminal record. Your Honours, the other provision which we must take your Honours to in terms of context in the Youth Justice Act is section 154, which is in the joint bundle of authorities in volume 1, tab 5 at page 280. At the end of the page, it then provides that:

A finding of guilt against a child by a court for an offence, whether or not a conviction has been recorded, is part of the criminal history –

in relation to the child for subsequently sentencing a child for an offence as a child, such that it allows, in our submission, that finding to be disclosed to the court despite the Rehabilitation Act, but in the circumstances of convicting a child on a subsequent matter.

Your Honours, in this context – and when we refer to the difference between the Youth Justice Act and the concepts of it relating to children and seeking to, if you will, act in the best interests of the children with more of a focus on the offender than perhaps on the community, we accept that at that antecedent step, that is, the step of considering whether or not to record the conviction as part of the sentencing mechanism, that there is a greater emphasis on the recognition that it is a child who has offended and is being considered by the court.

That is drawn out by the Court of Appeal’s decision in MDD which is in volume 4 of the joint bundle at tab 40. If we may take your Honours to it, this is at page 1219. This is the decision of his Honour Justice McMurdo, with whom Justice Fraser agreed, and it was in the context of sections 183 and 184 of the Youth Justice Act. At paragraph 21, his Honour there recognises the different weighing of considerations from those applying to adult offenders under the Penalties and Sentences Act. But then, in paragraph 22, his Honour then refers to the corresponding provisions of the Penalties and Sentences Act and, in our submission, those corresponding provisions are the provisions regarding the non‑recording of a conviction and the work to be done of those provisions.

That is with reference to the decision in, hopefully, Briese and particularly the reasoning of his Honour Justice Dowsett. The matter that Justice Dowsett was considering was a matter under the Penalties and Sentences Act, but what his Honour Justice McMurdo does in this case is apply that reasoning in relation to the purpose of recording a conviction and apply those principles in relation to the Youth Justice Act. If we may, that is not the only – we will not take your Honours to all of the decisions, but we have also referred to a decision of DBU and SBY where similar principles are applied from, can we call it, the Briese decision.

We say this because the circumstances of it being a child in relation to whether or not a conviction is recorded at that earlier stage as part of the sentence, that is, in our submission, where the fundamental principles in relation to youth offending are brought into a consideration of that decision, which is recognised by the Court of Appeal. It involves that different way of considerations and that is not how it is dealt with under the Penalties and Sentences Act.

In our submission, once one travels past that and the court has exercised the discretion to record or not record a conviction, the consequence, the effect, of the recording or the not recording of the conviction is the same, and it brings then alignment, in our submission, between the Youth Justice Act and the Penalties and Sentences Act both for the purposes of the Rehabilitation Act and otherwise as to what is the work to be done then of the non‑recording of a conviction.

Your Honours, we were then proposing to take you briefly to the provisions in the Penalties and Sentences Act as a comparison to the Youth Justice Act, section 184. So this is in the joint bundle of authorities in volume 2, tab 12 at page 423. One will note from section 12(1):

A court may exercise a discretion to record or not record a conviction –

Although, it provides for it only in certain sentences under the Youth Justice Act. It provides a similar power under section 183(3). Subsection (2), again, although there are some differences in relation to the weighing of matters that have to be accorded in relation to youth offending and adult offending from section 12(2) and section 184(1), one can see that the Acts both provide circumstances that must be taken into account but, it is again in an inclusive list.

Subsection (3A) is, in our submission, the analogous provision – or, to pick up, if we may, the Court of Appeal’s language, which we have referred to in the written submissions in identical terms, is a conviction without recording the conviction is taken not to be a conviction for any purpose. That, in our submission, is reflected in section 184(2); the circumstances where it can be provided are then in subsection (4)(b).

EDELMAN J: Ms Wheatley, does this add much to your primary submission? Your primary submission is one of construction of the provision itself.

MS WHEATLEY: It is.

EDELMAN J: If you are right, you are right. And if you are wrong, then it is difficult to see how the construction of a slightly differently worded provision concerned with adult offenders would add much to it.

MS WHEATLEY: We go to it, your Honour – and we are only proposing to briefly go to it. But in the context of the way that the matter was put at first instance and before the Full Court, was to draw the analogies between the two provisions and with particular reference to the decision in Hartwig, which relied on section 12 of the Penalties and Sentences Act. So we simply wanted to step through it quickly, your Honour, to draw out some of the similarities and some of the differences in relation to it.

Your Honour, just if we may very quickly draw out, section 12(4)(b)(i) maintains the ability to appeal as if the conviction has been recorded. In our submission, that is also picked up in section 116 of the Youth Justice Act, because it uses the term “a finding of guilt” and, of course, that incorporates whether or not a conviction has been recorded. And relevantly, (b)(iv):

subsequent proceedings against the offender for the same offence.

in our submission, is picked up by 184(3) which does similar work. Your Honours, we do not disagree that there are differences between the two Acts, and, as we have submitted, we well accept that there is a different weighing of matters in relation to that antecedent step of whether or not to record the conviction. But, in our submission, particularly consistently with the Rehabilitation Act, once you are at that stage of looking at what is the consequence or the effect of not recording the conviction, in our submission, it is the same whether it is a child or an adult. That is not one to obliterate the facts and circumstances, but it is in relation to the person’s criminal record or criminal history.

Your Honours, there is a more recent decision, it is referred to in the joint bundle of authorities at tab 28, volume 4; the more recent decision of LRMM of her Honour Justice Derrington. We only draw your Honours’ attention to it because it seems to differentiate between – in paragraph 14 of her Honour’s decision, it seems to differentiate now between a circumstance where a tribunal is considering a decision under section 501CA for revocation – the Tribunal being bound by Direction 90 – and the matters that the Tribunal can take into account with those that the Minister could take into account personally in this matter.

In our submission, there seems to be a difficulty with the approach that the Tribunal would have a wider scope of being able to consider matters because of the direction the Minister would have when it is the Minister’s direction that he provides to the Tribunal. We submit, the Minister is not bound by that direction, but it would seem to be a difficult position to reconcile, that the Tribunal can consider matters that potentially the Minster personally cannot.

JAGOT J: You conceded that if the provisions operate in the way that the Full Court held, that the Minister had taken into account an irrelevant consideration.

MS WHEATLEY: Subject to what I am just about to move to, your Honour, in terms of materiality, yes.

JAGOT J: Subject to that. Of course.

MS WHEATLEY: Yes. Thank you, your Honour. Your Honours, with that leap, if I may move to materiality. Your Honours are well familiar with the requirements of materiality, and we do not propose to take your Honours to the latest authorities, including Nathanson and the like, as to what is required. But with those principles in mind, could we take your Honours, please, to the decision of the Minister, because in our submission, to consider how in fact that decision was in fact made, one needs to look at what the Minister did in the course of his reasons. That is in the core appeal book. Could we commence, please, from page 11.

Your Honours, the Minister was not satisfied that the respondent had passed the character test and moved on to consider the second limb whether or not there was another reason why the original decision – the mandatory cancellation decision – should be revoked. Under the heading of the “Strength, nature and duration of ties”, the Minister considered the age of arrival in Australia, how long he had been in Australia, and that that might afford the respondent a higher tolerance for his criminal conduct, and that might be offset to some degree, however, because he did begin offending as a minor.

From paragraphs 15 to 16 and over the page, the respondent’s ties to his family in Australia were considered, and the Minister accepted ultimately that the respondent had made a positive contribution to the community. Under the heading of “Extent of impediments if removed”, the Minister considered those impediments, and ultimately determined and accepted that the respondent would suffer “significant hardship” in establishing himself in the United Kingdom.

From page 13, paragraph 26, under the heading, “Protecting the Australian Community”, and under the heading, “Criminal conduct”, the Minister considered the criminal offending of the respondent and noted his view:

that violent offences are very serious, especially in the context of domestic violence.

At paragraph 28, the Minister referred to some aspects of the respondent’s history:

mainly drug‑related and violent offences since he was 16 years old.

The Minister refers to a period between 2012 and 2014, noting:

he appeared in juvenile courts three times and adult courts twice, for assaults of police and some other offences –

The Minister then moves on to consider the period from 2015 to 2016, noting further appearances in court and drug offences, including contravention of a domestic violence order.

The Minister then moves on to consider what we might call the index effects or the trigger offence in relation to the serious domestic violence offence where the respondent was sentenced to two years’ imprisonment. At paragraph 30, with express references to some of the sentencing judge’s remarks, the Minister outlines the matters that, in our submission, the Minister thought was important in the context in this decision. Over the page at paragraph 31, the Minister said he agreed that:

domestic violence is a serious problem in our society and that this was a serious example of such offending.

He considered that the respondent:

has repeatedly committed offences of or related to domestic violence, and other assault offences adds more gravity to his offending.

Ultimately, the Minister found that this all reflected the seriousness of the respondent’s offending. Can we pause there to note that in those paragraphs 14, 28, and 31, is why we do accept that the Minister did consider the findings of guilt or the facts and circumstances of offending that the respondent did commit while he was a juvenile, for which no conviction was recorded.

If we come back to the Minister’s decision, he then considers the risk to the Australian community in relation to the serious offences, which were acknowledged by the respondent, and concludes that there was an ongoing risk, particularly if he had reoffended in a similar manner. At paragraph 49, on page 16, the Minister:

gave significant weight to the serious nature of the crimes committed . . . that are of a violent nature.

In our submission, in the context of the decision and the use of the words “serious nature of the crimes” is a reference to the domestic violence offending, particularly the offence which caused the mandatory cancellation of the respondent’s visa.

In our submission, when one looks at the Minister’s reasons and the fact of how the decision was made, there is almost a singular focus upon the seriousness of domestic violence offending, and that the Minister weighed that very heavily in the context of making his decision.

EDELMAN J: What about the last sentence of 43?

MS WHEATLEY: Yes, your Honour – in terms of a consideration of the risk?

EDELMAN J: Well, is that not a reference back, as well, to the issues in 14, 28, and 31? Coming back to them in conclusion and saying that the:

maturity and rehabilitation is yet to be tested –

by reference to a period of time which includes the juvenile offences?

MS WHEATLEY: Your Honour, we would submit that that is, when read together with 42 – what the Minister is referring to there is the testing of his rehabilitation in that context and that was not while he was a juvenile. So, his maturity might still be a matter that is considered when someone is say, 19 or 20, but that it is not, in our submission, it is not implicit in that reasoning that he is taking into account the facts and circumstances of the juvenile offending. Thank you, your Honour.

Your Honour, could we then take you, please, to the Full Court’s consideration of the materiality aspect of the argument, which is in the core appeal book at page 186.

GAGELER J: Paragraph?

MS WHEATLEY: Paragraph 39, your Honour. Thank you. The Full Court commences with the National Police Certificate, and, perhaps – your Honours, I apologise – I should have gone to this in the context of the Minister’s decision. Can I take you back, please, in the core appeal book to page 22. That should be a page from the National Police Certificate which records, at the end of the page, three appearances in juvenile court, being the “Maroochydore Childrens Court”.

Your Honours will recall that is how the Minister referred to them, and then two appearances at the top of the page in relation to the adult court at Wynnum Magistrates Court and Maroochydore Magistrates Court, and again that was how the Minister bundled them up and considered them in the context of his decision. Your Honours, if we could then come back, please, to the Full Court’s decisions at paragraph 39. In relation to the National Police Certificate, the Full Court observes:

That certificate included the six offences for which no conviction was recorded when he was aged 16 and 17 and detailed offences of going armed to cause fear, and serious assaults on police.

Can we pause there for a moment, your Honours. That is not how the Minister in fact made his decisions or how the Minister viewed those offences. The Minister did not count up the number of offences in relation to those matters which were juvenile offences. The Minister did not refer to the offence of going armed to cause fear. The Minister did refer to the assaults on police but did not call them serious or otherwise. The last sentence in that paragraph by the Full Court refers to:

Subsequent to reaching his majority in September of 2014, Mr Thornton was dealt with for two drug offences committed before he turned 18 and again no conviction was recorded.

However, again, the Minister does not seek to differentiate between those offences, does not seek to make any observations as to whether or not the offences were committed before he turned 18, whether he was dealt with afterwards, the Minister looked at it in terms of his appearances before the adult courts. It becomes all the more concerning, if we may, your Honours, in terms of when one looks at the dates of the offence in relation to the National Police Certificate. They are actually after he has attained the age of 18.

In paragraph 40, their Honours move on to consider recorded offences, “approximately 23”, and a description of those offences is provided. Again, the Minister does not in any way seek to quantify the number of offences that the respondent had engaged in. The Full Court then refers to MZAPC and notes paragraph 28 of the Minister’s reasons, and that – coming down to paragraph 44, in relation to the reference from the Minister at paragraph 31:

From the information contained in the National Police Certificate, it would seem that the reference to the ‘other assault offences’ was largely informed by the several quite serious assaults committed by Mr Thornton as a child.

In our submission, that is not what the Minister in fact decided, or in fact how the Minister considered those offences. What the Minister looked at in paragraph 28 was the Minister focussed on the respondent’s appearances in court. He describes them as “assaults of police”, not “serious” or “quite serious”, and then describes “some other offences”. He does not seek to describe what they were by any other description. The Full Court then goes on from paragraph ‑ ‑ ‑

GAGELER J: I am sorry, are you drawing a distinction between an appearance in court and the offence? Is that the distinction you are seeking to draw?

MS WHEATLEY: Not so much the distinction between that, your Honour, if we may, but more that when one is trying to objectively evaluate the Minister’s reasons and determine in fact how the decision was made, one needs to, in our submission, look at how the Minister made his decision.

GAGELER J: I do not think anyone would dispute that.

MS WHEATLEY: Thank you, your Honour.

GAGELER J: I mean, it is a very, very short point.

MS WHEATLEY: It is.

GAGELER J: I am just trying to understand what it is.

MS WHEATLEY: Sorry, your Honour, it is that the Full Court did not engage in a proper process of considering the Minister’s reasons from the Minister’s point of view when looking at whether or not, if we are wrong on our first point, did it materially – could it have affected the result, and our ultimate submission is when one looks at the reasons of the Minister and the focus on the seriousness of the domestic violence offending, any passing

reference to juvenile offending, in our submission, could not have altered the result.

In our submission, what the Full Court did not do in terms of Nathanson and SZMTA is they did not go through that process of looking in fact how the Minister made his decision, but looks at matters drawn out from the material and seeks to engage in whether or not they think it could have made a difference, rather than could it have made a difference to the Minister’s decision. That is it, in a nutshell.

GAGELER J: Thank you.

MS WHEATLEY: Your Honours, those are our submissions. Thank you.

GAGELER J: Thank you. Mr Keim.

MR KEIM: Thank you, your Honour. Your Honours, we will try to follow our oral outline fairly closely and, at the risk of seeking to teach your Honours how to suck eggs, as Chief Justice Holmes once said to me – we would like to start with the reasons for judgment, which are found in the core appeal book at 181. We have referred to paragraphs 23 to 29 in paragraph 2 of the outline, but there were just a couple of paragraphs that we thought we would use as kicking‑off points.

The first is paragraph 26 on page 182 and I would note that although her Honour is repeating the submissions that were made before her – as we understand the Full Court’s reasons, those submissions were adopted – but in paragraph 26, there is a reference made to importance of:

the use of the indefinite article in section 184(2) –

of the Youth Justice Act – the context of almost identical language in section 12(1) and section 184(2) – I am not quite sure if those references are right, I will come back to that. But, with regard to those, we wanted to take the Court to both the Youth Justice Act and the Penalties and Sentences Act.

EDELMAN J: Mr Keim, at least from my perspective, I am not sure how much the Penalties Act reasoning adds to the argument. Ms Wheatley accepted that if her submission about construction is right, then the Penalties Act does not add anything to it. And if her submission is wrong, it may not add much either. Would not a logical place be to start with the construction of the Youth Justice Act and the Crimes Act itself?

MR KEIM: Yes, your Honour. Can I just respond to that in this way. I am very much aware that both the reasoning of the Full Court and the way in which the case was conducted below accepted the correctness of Hartwig. So, the task that was taken on below – and has been taken in our written reasons – is to distinguish Hartwig while at the same time accepting that it was correct.

I can do that very shortly by expressing it in these terms. In Hartwig, the declaratory part about not being a conviction for any effect, we say, seems to have been read down by her Honour in that case relying on the context. We can say it is very easy to distinguish the present situation by saying that when one takes into account the context including the purposes of the Youth Justice Act – and the mischief addressed by section 184 – that there is absolutely no reason to read down that declaratory provision. And, when one gives the words of that provision its full effect, then it clearly comes within cognisance of the provisions in section 85ZR(2).

Having said that, I do not think I have to mention the Penalties and Sentences Act or Hartwig again, but that does explain why we have tended to refer to it in our argument and I will now concentrate on the words of the Youth Justice Act. Can I just say, with regard to section 184, if I can just take the Court to page 297 of the bundle of authorities ‑ ‑ ‑

GAGELER J: I am sorry, what Act are we going to?

MR KEIM: We are on the Youth Justice Act.

GAGELER J: Section number?

MR KEIM: Section 184, and I just wanted to refer briefly to section 184(1) and I wanted to say that the criteria set out there “in whether or not to record a conviction”, although, as the Full Court said it is very similar to the corresponding provision in the Penalties and Sentences Act, to the extent that they differ, the provisions emphasise the child‑centric nature of the purposes of the Youth Justice Act. There is a reference to “any previous convictions” in (1)(b). There is the reference to “rehabilitation generally”. There is a reference “retaining employment”. All of those matters are aspects unique to section 184 in this regard, which emphasise the child‑focused nature of the Act. That is what I wanted to say with regard to paragraph 26 of the Full Court’s reasons.

Going to section 184(2), in paragraph 27 of its reasons, the Full Court refers to “for certain purposes” and refers to in fact a distinction there between the Youth Justice Act and the Penalties and Sentences Act. What we wanted to say is that, in giving content to the commencement clause of section 184(2), the words:

Except as otherwise provided by this or another Act –

the permitted uses, as is identified in paragraph 27, are restricted:

to subsequent sentencing as a child –

and that is section 154 of the Youth Justice Act, which has been referred to previously – that is at page 280 of the bundle – and also to maintaining the applicability of the doctrine of autrefois convict which is dealt with in 184(3), which is over the next page.

Going to paragraph 28 of the reasons, what the Full Court refers to is another beneficial aspect of the Youth Justice Act by reference to the citation from R v MDD at the end of the paragraph, in that the default provision under the Youth Justice Act is not to record a conviction And, to similar effect, is the further quotation from MDD in paragraph 29, in which it is stated more generally in the Queensland decision being referred to, that the effect of the Youth Justice Act gives greater weight to the interests of the child offender and that reflects the analysis of the Court of Appeal generally with regard to the Youth Justice Act and what was referred to as its child‑centric nature.

In referring to giving greater weight to the interests of the child offender, this is derived from the way in which the discretion is expressed, this is the discretion to record a conviction, and restricted in the Youth Justice Act, and in particular, section 183, which we have referred to earlier, highlights that restriction on the exercise of the jurisdiction.

With regard to paragraph 3 of our outline, we note that in paragraph 30 the Full Court contrasts the objects of the two pieces of legislation, including the Penalties and Sentences Act. We just wanted to take your Honours to the relevant provisions of the objects and associated provisions of the Youth Justice Act. Section 2 of the Youth Justice Act is found at page 250 of the joint bundle. We draw particular attention to – well, we mention this, that providing a separate regime for child offenders is itself a significant matter going to the type of Act and the purposes and objectives of the Youth Justice Act, we say that is an important piece of context.

The other thing that is obviously very important is mentioned in section 2(d) of the Youth Justice Act on that page, which is the reference to the principles. With regard to the principles and their importance, that is reinforced by the words on the next page of subsection 3(2), which says:

The principles underlie the operation of this Act.

And we wanted to just refer your Honours to aspects of the principles. It is Schedule 1 to the Youth Justice Act, they are found at page 312 of the joint bundle. We note that the Full Court picks up the child-centric nature of the principles at paragraph 31, and the need to give beneficial provisions – this is also at paragraph 31 of the reasons:

the fullest relief which the fair meaning of the language will allow –

citing the case of Bull. We just wanted to refer the Court to principles 1, 2, and 3 on page 312, which reflect that description of the legislation, and then take your Honours to the next page, and just refer the Court to principles 16 to 20, which refer to reintegration in principle 16, and to education at principle 20(g), which is on the next page at page 315.

We did want to point out, and apparently this was made clear at special leave level, but it has not been discussed, I think, in any of the submissions, that there were two minor inaccuracies in the Full Court’s reasons. One was that the reference to principles on education actually came from a slightly different version of the principles; but our view is that the effect is the same. There is also a reference in the Full Court’s reasons to a statement that both pieces of legislation – which is perhaps not that relevant now in the light of what we have discussed with Justice Edelman – is they were in fact introduced in the same term, but they were not passed in the same term; one of the pieces of legislation was reintroduced in another term.

They are just two matters in the Full Court’s reasons on which the Court should not place too much weight because of that. I blame my learned junior; he probably led the Court astray in that respect.

GAGELER J: You have been quoting his submissions.

MR KEIM: Sorry, your Honour?

GAGELER J: You have been effectively quoting his submissions to the Full Court to us throughout your own submissions here, so he has done pretty well.

MR KEIM: I could not have done it without him, your Honour. I am just turning now to paragraph 4 of our written outline. The Full Court has criticised about our learned friends in their written submissions by saying that the Court referred to the mischief being addressed, and we have attempted to set that out in paragraph 4. The reference to the mischief is at paragraph 34 of the Full Court’s reasons.

We say that the particular mischief of providing for the effect of past offending as a child on the child’s future, providing for that not to go on and affect the child in later life, is entirely consonant with the child-centric youth justice system to which the Full Court referred in the context of the objectives and principles. We say, by going on now to paragraph 5 – I will not repeat that of our outline; and I probably do not need to say anything further about that because that is really concerned with contrasting the two pieces of legislation.

In paragraph 6 of our outline, we did – I want to briefly take the Court to the national documents. Articles 3 and 4 of the Convention on the Rights of the Child expressed in generic terms, but they then pick up the substantive effect of Article 40. So, Articles 3 and 4, which refer in general terms to institutions and also to legal structures – they are at page 1359 in volume 5 of the joint bundle, and then Article 40 appears at 1371. The particular reference we refer to is:

the right of every child . . . to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and which takes into account the child’s age and desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

We say that giving full effect to 184(2) seeks to do all of those things in Article 40, and a restrictive construction, we say, inhibits the achievement of those things.

As to – sorry, I thought somebody almost said something. As to the Beijing Principles, we really only wanted to – we have listed, a number which are, in more generic terms, relevant, but the ones that are more specifically relevant, they appear at page 1351 in volume 5. They are principles 21.1 and 21.2. In particular, the reference which is picked up by section 184 of the Act – sorry, 148 of the Act:

Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender.

Again, although that is not strictly relevant to the construction of section 184(2), we say that, to give a broad interpretation – to give full effect to the words of section 184(2) is consistent with that particular principle.

GAGELER J: I am sorry, which principle is it?

MR KEIM: The principle of that ‑ ‑ ‑

GAGELER J: I just did not pick up the words.

MR KEIM: Adult records, your Honours. It is article 21.2.

GAGELER J: Article 21.2. Thank you.

MR KEIM: Does your Honour have it?

GAGELER J: Yes, thank you.

MR KEIM: Can I just say, with regard to the relationship between 184(2), 154 and 148, what section 154 does – and I indicated that earlier; 154 and 184(3) – they provide a content of except as expressly provided in this Act or another Act. So, what 154 says is the purposes where a finding of guilt remains in the nature of a conviction – conviction taken with its broad, ordinary meaning – we are sentencing a child in a child court. So, section 154 gives content to that commencement phrase.

Section 148 also gives content to that, but, in our submission, it is – section 148(2) does not require section 148. Section 148 is really out of an abundance of caution and to make sure that it is clear. What is says, really, is that although you can use these in children’s courts in subsequent sentencing of the child as a child, section 148 makes it abundantly clear that it cannot be used at all in sentencing the person as an adult in an adult court. That is the way in which we see the three provisions interact.

STEWARD J: So, you accept 148 strictly was unnecessary?

MR KEIM: Yes.

STEWARD J: All right. Thank you.

MR KEIM: Yes, but you can see why a legislator and policy maker would want to make that abundantly clear, because it is such an important provision and it is such a far‑reaching provision.

I am on to paragraph 7 of our outline. And we refer to paragraph 35 of the reasons there, which are at page 185 of the core appeal book. Perhaps it is useful at this point to go to section 85ZR. It is – if you have the core appeal book open, it is conveniently set out in paragraph 33 of the reasons. We say this: that the chapeau or the prefatory words of section 85ZR(2) refers to:

in particular circumstances or for a particular purpose –

and we would make this point, just generally with regard to section 85ZR – and I am not sure that I am disagreeing with anything that our learned friends said with regard to this, but what is important to understand with regard to section 85ZR(2) is that it is a generic provision which has to pick up, or has to seek to pick up, provisions in every State of the Commonwealth, but also in many different foreign laws.

STEWARD J: It is using language of generality?

MR KEIM: Yes.

STEWARD J: Yes, I see.

MR KEIM: Yes. It is using language of generality and it is not a counterpoise to the pardon because, when they were writing the explanatory memorandum for the pardon – 85ZR(1) – they knew exactly what was being dealt with. The language in the explanatory memorandum for 85ZR(2) is not really apposite because it is so hard to describe a provision that seeks to pick up provisions everywhere.

The particular circumstance in which the declaratory aspect of section 184(2) operates is – and it says this expressly – where there is a finding of guilt without the recording of a conviction. So, that is a particular circumstance. It does not apply in all other circumstances where a conviction is not recorded, and does not apply in any other circumstances. It does not seek to apply, for example, with regard to expired or expunged convictions, because that is not the circumstance that is described.

The “particular” purpose – and this is what the Full Court acknowledges at paragraph 35 of the reasons – is all purposes except those purposes which are specified in the Youth Justice Act itself or any other Act. One of the impacts of this is that – and our learned friends do this in their written submissions – one of the impacts of this is that it is to no avail to make substantive comparisons between what a court might do with these purposes, or the particular way in which the Children’s Court was going to use these, and the purpose for which the Minister is making a decision under the Migration Act. What the section says is “all purposes” – all purposes.

I make one further submission with regard to that in case I am wrong with regard to that. That is, if one is going to make this substantive comparison, as our learned friends would ask the Court to do, you cannot do that in a narrow and pedantic way, because of the broad definition of Commonwealth authority. So, Commonwealth authority does include the Federal Court, but it includes Ministers and Departments and lots of other Commonwealth decision‑makers so that if you are going to make a substantive comparison between the implied purposes under – rather than the express purposes from section 184(2), and the making of a decision under the Migration Act, then what – the purpose of not regarding the conviction as existing at all – and I will come to that in a moment – are the same because, in deciding whether to deport someone or not, you are deciding to make an assessment on their personality and their character; and it is about rehabilitation, and it is about protection of the community. They are all the same things that a court does when it is sentencing – an adult court would do when it is sentencing.

So, making a proper substantive comparison, you actually find they are for the same purposes. But it is not necessary to go to that because we way that section 184(2) expressly says for all purposes except those purposes which are expressly accepted by legislation.

There is one further submission that we wanted to make in this context, and that is that it is important to look at the words of section 85ZR(2). They appear both in the chapeau and in subsection (b), but the ones that are important are in the chapeau because that is the precondition on which the pick‑up occurs in (b). The important words are, leaving out circumstances and purpose:

where, under a State law . . . a person is . . . to be taken never to have been convicted of an offence under a law of that State –

What we emphasise is that the question is not whether the conviction never existed, whether the finding of guilt never existed; the question is not whether the finding of guilt continues to exist in some conceptual fifth dimension. That is not the question at all. The question concerns the status of a human being. It is an acquired status by force of the State section, and that is indicated by the word “taken” in the chapeau. So, it is a deeming provision. What the Court is being asked to construe is what is the deeming effect of section 184 and when it uses the words:

is not taken to be a conviction for any purpose.

what it is saying is that, with regard to this person, this person is taken never to have been convicted. That is the deeming effect. It does not say that the finding of guilt was never made. It does not say that, in some sense, a finding of guilt still exists. The deeming provision is that the conviction is deemed not to exist. And that is the same as in our submission, that the person is taken never to have been convicted.

That is clearly the purpose of section 85ZR. It is to make sure that those types of provisions are given full effect in Commonwealth decision‑making. And the purpose of section 184(2) is to provide that protection to children who are dealt with under the Youth Act where, as a matter of legislative policy, it will happen a lot that a conviction is not . . . . . against them. That deals with the mischief of children’s lives being affected permanently by mistakes they made as a child, including for decision‑makers under Commonwealth legislation.

So, we do say that the two provisions marry up very effectively. They should both be construed in a beneficial form, and they should be given full effect of the words. We do not say that, because of its generic form, that section 85ZR(2) is a gimme, because it does use the word:

never to have been convicted –

but, it is stringent to that degree, and section 184(2) of the Youth Justice Act meets that stringency. And really, that is the core of our submissions. We have, in paragraphs 8 to 10, done what the Full Court has accused not of having done, and we make the point in paragraph 10 that the finding of guilt or acceptance of the plea of guilty by the Court is deliberately referred to because that is the subject of the deeming provision. And the words “conviction” – “a conviction”, and “not taken to be a conviction of any purpose” deliberately uses the ordinary meaning of the word “conviction” so as to have the broad effect. And our learned friends, in their written submissions, have quoted a series of cases saying the common law meaning of “conviction” is expansive.

GORDON J: One of the other ways of putting your argument is to say that the effect of 184(2) is to, in effect, redraft 85ZM by excluding (1)(b). Because it then becomes a part of the offence for which there cannot be a conviction. That is the other way you can put your argument. In other words, if 85ZM(1)(b) includes:

charged with, and found guilty of . . . without conviction.

MR KEIM: Yes.

GORDON J: What 184(2) says is, you cannot do that for any purpose.

MR KEIM: Yes. Yes, I accept that, your Honour. Paragraph 11, I think I have dealt with. Paragraph 12 I have referred to in passing, but I probably do not need to say anything further about that. Paragraph 13 – we just really wanted to make a very, very short point, which is the various Court of Appeal decisions from the State of Queensland talking about – in fact, it is going back to that comparison between section 12 and section 184 and saying they are identical. The point we make is they are looking at it for a very different purpose. They are not considering the construction question here, and they are just not really of much assistance. That is what we say with regard to those.

Probably we should take your Honours to – and this is our last point before materiality – we should just make sure that – we say that something – there is a little bit of weight in saying, well, if section 184(2) is given its full effect that we ask that maybe section 5 of the Rehabilitation of Offenders Act, which is at page 363, may not have been necessary. But something else that is quite curious happens with regard to this, and I just wanted to go through the provisions. At page 360, I just want the Court to note the definition of “charge”, which is where:

a person has committed an offence where –
. . .
(b)a conviction is not recorded by a court in respect of the allegation –

So “charge” is how this kind of thing is referred to, whether it exists – whether it arises in the adult courts or the children’s courts. Then “criminal history” on the next page is an important part of the definition because criminal history only refers to where convictions have been recorded.

“Rehabilitation period” on the same page, you can see that in both (a) and (b) that both of those only refer – so, expunged convictions, spent convictions, that relief provided by the Rehabilitation of Offenders Act does not apply to circumstances where a conviction has not been recorded in either court, and then the effect of the rehabilitation period having expired in both (a) and (b) and that is set out in paragraphs 8, 9 and 10.

The relief that is provided with regard to whether the rehabilitation period has expired – which only applies to events where a conviction has been recorded – is that you get the benefit of section 8 – lawful to deny certain convictions. You get the protection of section 9 – duty to record certain convictions – and that is it – section 8 and section 9. But there, section 9 ‑ ‑ ‑

GAGELER J: Mr Keim, can you just state the point you are making, in a nutshell?

MR KEIM: Yes, your Honour. Can I just make one further prefatory point? As our learned friend said, the protection in section 5 is the only protection that the Act gives in circumstances where a conviction has not been recoded. So, my point is, that when the rehabilitation period has expired, the Rehabilitation Act gives less protection to lesser offenders than to people where a conviction has been recorded – greater offenders. So, that is another reason – although the Acts do not marry up perfectly, that is another reason why section 184(2) should be given the full effect of its words. That was the point, your Honour.

With regard to materiality, the only thing we wanted to say with regard to it was that the paragraphs in the reasons of the Minister which we say indicate the Minister giving weight to the convictions as a child – and I will just read them out slowly – 11 to 13, 14, 27, 28, 31 and 49 – and a fair construction of the Minister’s reasons makes it clear that the test of materiality has been met. That is all we wanted to say with regard to that.

Section 15 of the Evidence Act is that section which I think appears in all Evidence Act which, if I can just say, it is where normally a criminal defendant cannot be cross‑examined with regard to past criminal offences, but if the defendant has put the character of a prosecution witness into question, then you can ask the leave the court to cross‑examine on those matters and the effect of the paragraph in the Youth Justice Act is that a child gets protection from that as well. Even if they have put the prosecution witness’s character into evidence, they cannot be asked questions about it. So, that is an important protection which just goes to add to the picture.

Your Honour, I have not even been racing. I think my learned friend has really helped by covering the points and taking your Honours to a lot of the detail of the provisions. But those are our submissions, unless your Honours have some questions.

GAGELER J: Thank you, Mr Keim.

MR KEIM: Thank you, your Honour.

GAGELER J: Ms Wheatley, do you have a reply?

MS WHEATLEY: There were just a couple of quick points, your Honours.

GAGELER J: How long would you think that will take?

MS WHEATLEY: I would think only five minutes.

GAGELER J: Yes, go ahead, thank you.

MS WHEATLEY: Your Honours, I do apologise and do seek an indulgence to make a correction to our written submissions, which I should have done in‑chief. I do apologise, but it is at footnote 36 of the written submissions. And it is with reference to paragraph 44(a) in the decision of MDD, which was the reasoning of his Honour Justice Henry. His Honour was in dissent, he was not in agreement with his Honour Justice McMurdo and Justice Fraser. Thank you, your Honours.

Your Honours, in relation to the matters raised by our learned friends, and I appreciate this authority is not referred to in the bundle, but the submission was made that the purposes of the Minister’s decision and the weighing and the consideration of the character aspects were the same as the matters in relation to the particular circumstances, and hence it would answer the all purposes in the Youth Justice Act.

We would just note the High Court’s decision in Falzon in relation to the different aspects and the different purpose and that it is not about punishment and it is not about those aspects in relation to a consideration of a visa cancellation decision, as opposed to the imposition – sorry, whether or not to record a conviction under these provisions of the Youth Justice Act, such that it is not a corresponding purpose.

GAGELER J: I did not understand that to be part of your case in‑chief, that there is no corresponding purpose. But maybe I have just misunderstood you.

MS WHEATLEY: I will have the reference turned up. I do believe we referred to it in the written submissions, your Honour, but it was really in reply to the submission of the purposes under the Youth Justice Act and under the Migration Act in relation to the assessment of character are the same purpose in terms of sentencing. And it was really to reply to it, when one looks at the considerations in Falzon and that aspect of punishment, in our submission, they are different. Thank you, your Honour, it is in relation to paragraphs 58 of the written outline, and 59.

GAGELER J: All right. It is a point about the construction of section 85ZR(2), is it?

MS WHEATLEY: Yes, it is, your Honour.

GAGELER J: Yes. Thank you.

MS WHEATLEY: Thank you, your Honour. Your Honours, the other aspects that we were going to refer to are really covered in our written submissions by reference to Culleton and the forward‑looking backward‑looking approach. I do not think we need to re‑traverse that ground.

Thank you, your Honours, that was all we had in reply.

GAGELER J: That is all? All right.

MS WHEATLEY: Thank you, your Honours.

GAGELER J: Yes, thank you very much, Ms Wheatley. The Court will reserve its decision in this matter and will adjourn to 9.30 am on 9 March 2023 for the pronouncement of orders and otherwise until 10.00 am on that day. Thank you.

AT 12.45 PM THE MATTER WAS ADJOURNED

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Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCATrans 23

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[2023] HCATrans 23

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal