Page:Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/19

Beech-Jones J

15.

conditions),^[1] does not ordinarily take away the fact of a conviction. Instead, it only relieves the effects of a conviction.^[2]

Second, Hartwig v PE Hack^[3] was distinguished in Thornton and the basis for that distinction is applicable in this case. The applicant in Hartwig v PE Hack had been found guilty of an offence, but a Queensland court had exercised the discretion conferred by s 12(1) of the Penalties and Sentences Act 1992 (Qld) to not record a conviction.^[4] However, under that legislation, a "conviction" was defined to mean "a finding of guilt, or the acceptance of a plea of guilty, by a court"^[5] such that a person was "convicted" by a finding of guilt or the acceptance of a plea of guilty even if no conviction was recorded.^[6] Hence, under that State law it was not correct to say that the applicant in that case was taken never to have been convicted. By contrast, under the provisions of the Youth Justice Act considered in Thornton, a finding of guilt without any conviction being recorded was not, and was not taken to be, a conviction for any purpose.^[7] The same position applies under the Children Proceedings Act.

The Minister further submitted that, unlike s 184(2) of the Youth Justice Act as considered in Thornton, there is nothing in s 14(1)(a) of the Children Proceedings Act that provides that a person is taken never to have been convicted of an offence under a law of New South Wales for all purposes. The Minister noted that s 14 is found within Pt 2, which only applies in a curial context.

This submission should also be rejected. Leaving aside s 33(6) of the Children Proceedings Act, the Court was not referred to any statutory provision which imposed any limit on the purposes for or circumstances in which a child who is the subject of a finding of guilt in the circumstances referred to in s 14(1)(a)

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1. Kelleher v Parole Board (NSW) (1984) 156 CLR 364 ("Kelleher") at 371 per Wilson J.
2. Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 350–351 [98] per Heydon J, quoting R v Foster [1985] QB 115 at 128, 130; Kelleher (1984) 156 CLR 364 at 371 per Wilson J.
3. [2007] FCA 1039.
4. Hartwig v PE Hack [2007] FCA 1039 at [4]–[5] per Kiefel J.
5. Penalties and Sentences Act 1992 (Qld), s 4.
6. Thornton (2023) 97 ALJR 488 at 494–495 [25], [27] per Gageler and Jagot JJ; 409 ALR 234 at 240–241.
7. Thornton (2023) 97 ALJR 488 at 495–496 [29]–[30] per Gageler and Jagot JJ, 504 [81] per Gordon and Edelman JJ; 409 ALR 234 at 241–242, 253.