Consideration
25 The submission on behalf of the applicant that the applicant was not convicted because the effect of s 25 of the Spent Convictions Act was that any conviction by a Western Australian Court of Petty Sessions following a plea of guilty was not a conviction is untenable.
26 Section 25 of the Spent Convictions Act is a provision in respect of interpreting statutes in Western Australia. Where statutes contain a reference to a conviction such a reference is not to be construed as including a spent conviction. This is consistent with one of the objects of the Spent Convictions Act, which is to rehabilitate persons who have been convicted by limiting the effects of the conviction. None of the examples of legislation of the Western Australian legislature referred to here which contain a reference to a spent conviction provides that a spent conviction is not a conviction; in fact the opposite. A spent conviction order is a statutory sentencing option once a finding of guilt has been made and 'convicted' means 'found guilty' as set out in paragraph 20 above. References to a spent conviction are all predicated on a conviction which is able to be treated as 'spent' or 'past' for certain purposes such as obligations to disclose and obligations on employees and those assessing character (ss 18 -23, 26 and 27). Construed in accordance with well established principles, s 25 does not provide that spent convictions are not convictions.
27 The second submission of the applicant that cl 866.222A is invalid turned on a submission that the clause was inconsistent with or repugnant to the Act. It was not in contention that the Act and Regulations thereunder are to be construed so as to produce harmonious and consistent provisions: see generally, D Pearce, Delegated Legislation in Australia, 2nd ed., ch 19: see also Webster v McIntosh (1980) 32 ALR 603 at 605; and see Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].
28 Sources of power to make regulations under the Act containing criteria for protection visas are to be found in s 31 referred to above and under the general regulation power in s 504.
29 It was contended for the applicant that s 501 of the Act dealing with a power to refuse or cancel a visa on character grounds dealt exhaustively with the way in which criminal records are to be taken into account in the exercise of the power to grant or refuse to grant a Permanent Protection visa by reference to a character test. Thus it was contended cl 866.222A impermissibly covered the same ground and/or alternatively was directly inconsistent with the statutory scheme of s 501, by imposing a mandatory exclusion based on conviction per se without regard to penalty, whereas s 501 contained a discretionary power.
30 On this aspect, I accept the submissions on behalf of the respondent that cl 866.222A is not additional to or inconsistent with s 501 of the Act.
31 In providing for the respondent to exercise a special power to refuse or cancel a visa under s 501, where the respondent is not satisfied that an applicant passes the character test, the respondent can take into account 'past and present general conduct' as well as 'past and present criminal conduct.'
32 There are other powers to cancel a visa (see s 118). The terms of s 501 do not evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account. Other sections of the Act, such as 91T and 91U also deal with criminal conduct. Section 501 does not contain criteria for the grant of a visa as does cl 866.222A. There is nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas as contemplated by s 31. Section 501 contains a power to refuse or cancel a visa; the power to grant a visa is provided in s 65 of the Act. Finally, cl 866.222A cannot be described accurately as a 'mandatory exclusion' as it was in written submissions on behalf of the applicant. In its terms, the clause operates to preclude an applicant from obtaining a Permanent Protection visa in the circumstances covered. As there are no equivalent criteria in respect of a Temporary Protection visa, an applicant is not excluded from protection; rather an applicant does not obtain all the benefits of a Permanent Protection visa until the effluxion of four years in respect of convictions covered by the clause. It can be noted in this regard that cl 866.228(b) allows the Minister to specify in writing the requisite period for which the applicant needs to hold his Temporary Protection visa in the context of qualifying for a Permanent Protection visa. In the normal course the applicant will not be impeded by cl 866.222A after 21 June 2005. I accept that should the applicant seek to renew or expedite an application for a Permanent Protection visa after 21 June 2005, the nature of a spent conviction order and s 25(1) of the Spent Convictions Act and s 45(1) of the Sentencing Act are matters worthy of consideration having regard to the different provisions in respect of family sponsorship for Temporary and Permanent Protection visa holders. However, I express no views beyond that as the fate of any application made by the applicant under cl 866.228(b) is entirely a matter for the Minister.
33 There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act. The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes. Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class. Clause 866.222A does not diminish, add to or derogate from the regime in s 501.
34 Thus, it seems to me that cl 866.222A does not impose distinct 'additional' criteria to any requirements of s 501, and does not fall outside the regulation making powers under the Act; further it is neither an inconsistent piece of subordinate legislation nor does it create a regime for dealing with character, different from that provided in the Act. Accordingly, the authorities relied on for the applicant are all distinguishable: see Morton v Union Steamship Company of New Zealand (1951) 83 CLR 402; Ira, L & LC Berk Ltd v The Commonwealth (1930) 30 SR (NSW) 119 and Shanahan v Scott (1957) 96 CLR 245. In my view cl 866.222A is valid subordinate legislation.
35 I should record my gratitude to counsel for comprehensive submissions made both in writing and orally. No jurisdictional error or errors of law as alleged have occurred in the decision for which judicial review is sought. Thus no grounds for review have been made out.
36 The relief sought by the applicant pursuant to s 39B of the Judiciary Act and/or s 5 of the Administrative Decisions (Judicial Review) Act is refused and the application for judicial review is dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.