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  • Writer's pictureStuart Jeffery

Common(wealth) Knowledge #56: Queensland youth justice system examined by High Court

High Court upholds Queensland legislation that treats adult and child guilty verdicts differently.

The High Court of Australia, in a 4-1 split, has presided over a battle between the youth justice systems of Australia and the Australian Department of Immigration over revoking visas of individuals who committed crimes as children.

This decision, which was a win for the Queensland government, comes at a time when the Northern Territory, Australian Capital Territory, and several State governments are in the process of raising the age of criminal responsibility from 10 to 12 or 14. This would prevent children below that age from being found guilty of any criminal offences.

At the same time, Queensland is itself being faced with a ‘youth crime wave,’ as its Labor government and LNP opposition fight over how to reform the justice system to manage this problem.

In the case of Minister for Immigration v Thornton [2023], a majority of the High Court concluded that if a person had committed crimes as a minor, and did not have a written conviction recorded when found guilty, then those crimes cannot be considered when by the Minister for Immigration, or any Department of Immigration staff, when determining whether to revoke their visa.

At age 21, the defendant, Thornton, who was a UK citizen living in Queensland on a visa since age 3, Thornton, had been sentenced to 24 months’ imprisonment. He was convicted of various domestic violence-related offences, including assault occasioning bodily harm.

As a result, he had his visa revoked under Section 501(3A) of the Migration Act 1958 (Cth), with the Minister for Immigration determining that he had been committing violent and drug-related offences since age 16, and so was posed an “unacceptable risk of harm to the Australian community.”

Section 149 of the Youth Justice Act 1992 (Qld) states that there are specific rules that must be followed when a court is sentencing a child.

There are also special rules for children when it comes to convictions. Section 183(1) establishes a general rule for convictions not to be recorded, while Section 184 states that when a court is deciding whether or not to record a conviction, the court must consider the nature of the offence/s, the age of the child, whether they had any other recorded convictions, and the impact that a recorded conviction would have on their rehabilitation and employment opportunities.

Under Section 184(2), regardless of whether there was a finding of guilt, if there is no conviction recorded then it is not a conviction for the purpose of a criminal record.

This reinforces Section 148, which says that, regardless of a finding of guilt, if there is no conviction for an offence committed as a child, it cannot be used as evidence to demonstrate a criminal record.

Section 85ZR(2) of the Crimes Act 1914 (Cth) recognised the legitimacy of any State and Territory laws on the convictions of children, and that if no conviction was recorded at the State or Territory level, then this would be extended to Commonwealth law also.

Thornton challenged the decision to revoke his visa, seeking judicial review by the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth), where the trial judge agreed with the decision of the Minister.

Thornton appealed to the Full Court of the Federal Court, which sided with him, so the Minister for Immigration appealed to the High Court.

Five of the High Court’s seven judges heard this case. The four judges who agreed with Thornton, making up the majority, wrote two judgments, with Justices Gageler and Jagot writing together, and Justices Gordon and Edelman agreeing with them on the general findings. Only Justice Steward dissented.

After reviewing the Queensland legislation, Gageler and Jagot JJ commented that it “deals with children in a way which is not comparable to the way the law deals with adults who are alleged to have committed an offence … [they] are dealt with in a manner appropriate to their unique needs and circumstances as children.”

Although not all of Thornton’s offences were committed as a child, even the trial judge admitted that some were committed “before adulthood,” and because there had been no convictions since age 19, Gageler and Jagot JJ concluded that the offences committed before adulthood must have been “material” in the Minister determining that Thornton was a danger to society. The Minister was incorrect to rely on this, and so they ordered that the Minister’s decision be made again, this time only using correct considerations.

To Gageler and Jagot JJ, like the other majority judges, if there was a reasonable possibility that this material consideration affected the outcome of the decision, then the decision was invalid.

Gordon and Edelman JJ looked at the ‘character test’ under Section 501 of the Migration Act 1958 (Cth). Under the legislation, the visa is automatically revoked in cases like this one, unless the Minister can be satisfied that there is a reason why it should not be revoked.

The character test is concerned with various criminal activities, and if a person has a “substantial criminal record,” their visa’s cancellation cannot be undone, unless there is “another reason” why it shouldn’t be revoked, according to Section 501CA(4)(b)(ii).

The Minister was not satisfied that there was another reason for it not being revoked, and said that he was a risk to the community, which would outweigh any other reason.

Gordon and Edelman JJ concluded that referring to offences that didn’t have any convictions recorded in relation to them was an ‘irrelevant consideration’ for the purposes of Section 501CA(4)(b)(ii), and so the Minister could not use it.

Steward J observed that the offences committed as a child led to fines and probation, but the offences committed as an adult involved more serious consequences. He argued that the fact Thornton was only fined for assaulting police officers as a child meant that he went on to commit more serious offences.

He took a narrower approach to the scope of the Commonwealth legislation considered by the court. Whereas the majority argued that the Commonwealth legislation meant all offences committed without recorded convictions were to be treated that way at a federal level, including when they involve children, Steward J’s narrow interpretation limited it only to covering wrongful convictions where the person was pardoned.

The possibility of a conflict with an earlier decision, Hartwig v Hack [2007], by High Court Chief Justice Kiefel, who was only a Federal Court Justice at the time of her ruling, means that a future High Court case may challenge this ruling.

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Hartwig v Hack [2007] FCA 1039.


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