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

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs sought special leave to appeal a decision of the Full Court of the Federal Court of Australia. The dispute concerned whether the Minister, when assessing a non-citizen's character for the purposes of the *Migration Act 1958* (Cth), could take into account a juvenile conviction that was not recorded under Queensland legislation. The applicant argued that the Full Court erred in holding that the Queensland provision completely obliterated the fact of the conviction and the circumstances of the offending, thereby prohibiting the Minister from considering it.

The High Court was asked to determine whether State or Territory legislation providing for the non-recording of a juvenile conviction falls within the ambit of section 85ZR(2) of the *Crimes Act 1914* (Cth). This provision dictates how certain convictions are to be treated for federal purposes. The core legal issue was whether the specific Queensland statutory provision for the non-recording of juvenile convictions effectively removed the finding of guilt and the associated facts and circumstances from consideration by the Minister under the character provisions of the *Migration Act*, or if those matters could still be taken into account as indicative of a person's character.

The Minister's argument was that the Full Court's interpretation was contrary to principle and could lead to inconsistent outcomes. It was contended that a non-recording of a conviction does not erase the underlying facts of offending, which are relevant to assessing a person's enduring moral qualities. The Minister submitted that the *Migration Act* itself, through its focus on "criminal conduct" and "character," contemplates consideration of such underlying facts, irrespective of whether a formal conviction was recorded. The Minister also argued that the Full Court erred by not properly considering definitions of "conviction" and "finding of guilt" within relevant legislation and by placing undue emphasis on the contextual purpose of the *Youth Justice Act 2002* (Qld) without adequately considering the text.

The respondent argued that the Queensland *Youth Justice Act* provision was not a mere non-recording provision but had a substantive effect that removed the fact of the offending from consideration, as contemplated by section 85ZR(2) of the *Crimes Act*. The respondent highlighted that the *Youth Justice Act* has a child-centred approach, prioritising rehabilitation, and that subsection (3) of section 184 of that Act, which prevents subsequent proceedings for the same offence, indicated that subsection (2) was intended to operate to remove the fact of conviction. The respondent also contended that any decision on appeal would not necessarily impact schemes in other States, as their legislative provisions might differ in text and context, particularly as they may not specifically deal with children.