Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/13

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Beech-Jones J

9.

(a) …

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence." (emphasis added)

Section 85ZR(2) operates "[d]espite any other Commonwealth law", including s 501(2) of the Migration Act.[1] For the purpose of s 85ZR(2), a "Commonwealth authority" includes a Commonwealth Minister, a Commonwealth department and a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, which includes the delegate.[2]

Section 85ZS(1) elaborates on the consequences of s 85ZR operating so that a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence by any Commonwealth authority.[3] Thus, the person is not required, in those circumstances or for that purpose, to disclose the fact that they were charged with or convicted of the offence.[4] Another consequence, in s 85ZS(1)(d)(ii), is that "anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence" (emphasis added).[5] Section 85ZS(1) does not affect the generality of s 85ZR[6] and s 85ZM relevantly provides that a person shall be taken to have been convicted of an offence if "the person has been charged with, and found guilty of, the offence but discharged without conviction".[7]

  1. ↑ Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488 ("Thornton") at 501 [60] per Gordon and Edelman JJ; 409 ALR 234 at 249.
  2. ↑ Crimes Act 1914 (Cth), s 85ZL.
  3. ↑ Section 85ZS is subject to the exemptions in Div 6 of Pt VIIC of the Crimes Act, none of which are presently relevant.
  4. ↑ Crimes Act, s 85ZS(1)(a).
  5. ↑ See Thornton (2023) 97 ALJR 488 at 493 [12] per Gageler and Jagot JJ, 501 [60] per Gordon and Edelman JJ; 409 ALR 234 at 237, 249.
  6. ↑ Crimes Act, s 85ZS(2).
  7. ↑ Crimes Act, s 85ZM(1)(b).
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