13.
on the Court having found a person guilty of an offence (and not on their being "convicted").
Two matters should be noted about these provisions of the Children Proceedings Act in their application to the plaintiff.
First, like the provisions of the Youth Justice Act considered in Thornton, the above provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose. An example of a statutory provision that provides to the contrary is s 33(6) of the Children Proceedings Act, which was introduced with effect from 3 November 2008.[1] Section 33(6) deems a finding of guilt by the Children's Court to be a conviction "[f]or the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence" and enables the Court to exercise power under that legislation as if the person had been convicted of the offence.[2]
Second, an issue arises as to the operative date of the provisions of State law that engage s 85ZR(2) (and s 85ZS) of the Crimes Act. Section s 85ZR(2)(b) is engaged at the point in time when the relevant Commonwealth authority purports to takes some step or action ("by any Commonwealth authority") that involves a consideration of something that took place in respect of a person who, under State law, is taken never to have been convicted. In this case, the action "by any Commonwealth authority" was the decision by the delegate on 9 October 2013 to cancel the plaintiff's visa. In doing so, the delegate considered something about the plaintiff, namely various findings of guilt made against him as a child. It follows that the relevant "State law" to be considered is so much of the State law that in October 2013 defined and described the effect of the findings of guilt made by the Children's Court when the plaintiff was under the age of 16 years.
As explained, the effect of the Children Proceedings Act as continually in force up until the time of the delegate's decision is that a finding of guilt was not to be treated as a conviction for any purpose unless that Act or other legislation specifically so provided. No such provision was referred to. Thus, under State law applying as at 9 October 2013, the plaintiff is "taken [as] never … hav[ing] been
- ↑ Children (Criminal Proceedings) Amendment Act 2008 (NSW), sch 1 [30].
- ↑ See also s 3(2) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), which, with effect from 7 July 2003, provided that for the purpose of making an application or appeal in respect of a decision of the Children's Court, a reference to a "conviction" included a reference to a finding of guilt made under the Children Proceedings Act.
