Eamad Saba v Children's Guardian

[2023] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Saba v Children's Guardian [2023] NSWCATAD 156

Hearing dates:

10 February 2023

Date of orders:

19 June 2023

Decision date:

19 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
J Herberte, General Member

Decision:

1. The decision of the respondent on Internal Review dated 7 September 2022 to issue Eamad John Saba with an exclusion and refuse to grant Eamad John Saba a clearance is affirmed.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicant’s children and step children (including any other identifying information as provided in section 64(4)) in connection with these proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk – non publication order – whether open justice served.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Criminal Code (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Evidence Act 1995 (NSW)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth)

National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164

Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Council of the Law Society of NSW v CZD [2017] NSWCATOD 31

Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84

FBC v Children’s Guardian [2021] NSWCATAD 286

FPV v Children’s Guardian [2023] NSWCATAD 59

John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465

Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

R v Commission for Children and Young People [2002] NSWIRComm 101

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88

Roberts v Balancio (1987) 8 NSWLR 436

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

Tilley v Children’s Guardian [2017] NSWCA 174

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Nil Cited

Category:

Principal judgment

Parties:

E Saba (Applicant)
Children’s Guardian (Respondent)

Representation:

Advocates/Counsel:
S McAuley (Applicant)
M Whitbread (Respondent)

Solicitors:
McAuley Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00298969

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicant’s children and step children (including any other identifying information as provided in section 64(4)) in connection with these proceedings is prohibited.

Reasons for Decision

Introduction

1. The applicant, by an application dated 25 September 2022 and filed 7 October 2022, seeks administrative review pursuant to section 41(1) of the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW) (the NDIS Worker Checks Act) of an internal review decision affirming the original decision made on 21 July 2021 by the Children’s Guardian to refuse to grant the applicant a NDIS worker check clearance. This decision is referred to as the “refusal decision” in these reasons. The refusal decision notified on 7 September 2022 was a review conducted under section 53 of the Administrative Decisions (Review) Act 1997 (NSW).

2. The clearance was refused because the Children’s Guardian was satisfied that the applicant poses a risk of harm to persons with a disability.

3. The applicant has convictions for offences for the importation of commercial quantities of precursors used in the manufacture and production of a prohibited drug. The applicant pleaded guilty to 2 offences, was sentenced to a term of imprisonment for 9 years 11 months, was released on parole in May 2016, and the sentence concluded in 2020. The applicant concedes that he engaged in that criminal behaviour hoping to obtain significant financial benefit. The offence involved importation of approximately 2.66 million cold and flu tablets from Thailand containing pseudoephedrine, weighing 603 kg or approximately 125 kg of pure pseudoephedrine, which was to have been used to manufacture high-grade methamphetamine, that is “ice”, to the street value of between $77 million and $112 million.

4. There has been no non-publication order made in this matter under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant. The Children’s Guardian opposed the making of an order restricting such non-publication in relation to the applicant. The consideration of this issue is contained in the later part of these reasons.

5. The NDIS Worker Checks Act is aptly described in the second reading speech in the NSW Parliament, on 24 October 2018, as the first Federated worker screening scheme which will be applicable through Australia, designed to minimise the risk of harm to people with disability, by preventing workers that pose a risk of harm to such persons from working in certain roles within the NDIS. The scheme has some similarities to the Working with Children Check clearance scheme in relation to children but also has distinguishing features not present in that scheme.

6. Where an application is made to the Children’s Guardian for a clearance under section 6 of the NDIS Worker Checks Act, the Children’s Guardian must grant the clearance unless the application is to be refused pursuant to section 8 of that Act.

7. Section 8 (2) of the NDIS Worker Checks Act relevantly provides that an application must be refused if:

(a) the applicant is a disqualified person, or

(b) a risk assessment of the applicant is required (as provided by Part 3) and the risk assessment determines that the applicant poses a risk of harm to persons with disability.

8. The definition of a “disqualified person” in section 5 (1) of the NDIS Worker Checks Act is a person who has been convicted of an offence described by the National Disability Insurance Scheme (Worker Checks) Regulation 2020 (NSW) (NDIS Worker Checks Regulation) as a disqualifying offence, and the offence was committed by the person when they were an adult.

9. The applicant is not a “disqualified person”.

10. A risk assessment is required when the circumstances set out in section 14 of the NDIS Worker Checks Act apply. The provisions of section 14 are:

14 Requirement for risk assessment

(1) A risk assessment of an applicant for or the holder of a clearance is required in the following circumstances:

(a) if the applicant or holder is a presumptively disqualified person,

(b) in circumstances prescribed by the regulations,

(c) in such other circumstances as the Screening Agency may determine, either generally or in a particular case.

(2) A risk assessment of an applicant for a clearance is required at the time of application if there are circumstances at the time of application that require a risk assessment.

(3) A risk assessment of the holder of a clearance is required if the Screening Agency becomes aware that there are circumstances that require a risk assessment.

11. In this matter the risk assessment was determined by the Children’s Guardian to be appropriate pursuant to section 14 (1) (c) of the NDIS Worker Checks Act due to the applicant’s criminal history.

12. The Children’s Guardian when conducting a risk assessment is to assess and determine whether a person poses a risk of harm to persons with disability, as required by section 13 (1) of the NDIS Worker Checks Act.

13. Section 13 of the NDIS Worker Checks Act provides as follows:

13 Nature of risk assessment

(1) A risk assessment is an assessment and determination by the Screening Agency as to whether a person poses a risk of harm to persons with disability.

(2) A reference in this Act to a risk of harm to persons with disability is to be interpreted in accordance with the following principles:

(a) the risk of harm must be a real and appreciable risk of harm,

(b) the risk of harm does not need to be likely or significant,

(c) the risk of harm need not arise from recent events.

(3) In this Act, harm includes but is not limited to the following:

(a) personal harm, which means any detrimental effect on a person’s physical, psychological, emotional or financial well-being,

(b) sexual harm, which means non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

14. ‘Risk of harm’ and ‘harm’ are thus given definition in the context of the legislative scheme and the detrimental effect of harm includes a broad range of effects namely physical, psychological, emotional or financial well-being.

15. By reason of clause 5 of schedule 1 of the NDIS Worker Checks Act a reference to a person posing a risk of harm to persons with disability is a reference to a person posing such a risk if the person is engaged to do NDIS work.

16. Section 16 of the NDIS Worker Checks Act sets out matters which the Children’s Guardian is required to consider for the purposes of the risk assessment. Those matters include:

16 Matters to be considered in risk assessment

The Screening Agency is to consider the following for the purposes of a risk assessment:

(a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work,

(b) the length of time that has passed since a relevant event occurred,

(c) the vulnerability of any victim of a relevant event at the time of the event and the person’s relationship to the victim or position of authority over the victim at the time of the event,

(d) the person’s criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour,

(e) the person’s conduct since a relevant event,

(f) all other circumstances in respect of the person’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work,

(g) such other matters as the Screening Agency considers appropriate.

17. The conclusion of the Tribunal after considering all of the evidence and submissions is that the correct and preferable decision is that the applicant poses a risk of harm to persons with disability, and the decision to refuse a clearance ought to be affirmed. The reasons for this conclusion are set out in more detail in the relevant paragraphs.

The Evidence

18. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal, includes:

1. Affidavit of Eamad John Saba dated 16 December 2022, together with the Exhibit to that affidavit, and character references from 5 people: Exhibit 1;

2. Bundle of section 58 documents: Exhibit 2;

3. Respondent’s Further Evidence filed on 29 November 2022: Exhibit 3;

4. Submissions of the applicant: Exhibit 4;

5. Submissions of the Respondent: Exhibit 5.

19. The applicant gave oral evidence and was cross-examined by the representative for the respondent.

20. The parties made oral submissions after the conclusion of the evidence.

21. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

22. The NDIS Worker Checks Act came into force on 28 November 2018.

23. The requirement to obtain a clearance under the NDIS Worker Checks Act is prescribed by the National Disability Insurance Scheme Act 2013 (Cth), The National Disability Insurance Scheme (Practice Standards-Workers Screening) Rules 2018, and the Intergovernmental Agreement for the NDIS.

24. The screening process for the grant of a clearance in New South Wales is carried out by the designated “Screening Agency”. Pursuant to section 4 of the NDIS Worker Checks Act the “Screening Agency” is the person or body appointed by the Minister by order in writing published in the Gazette as the screening agency for the purpose of the NDIS Worker Checks Act. The NSW Government Gazette (No 58) dated 27 March 2020 published that the Minister for Families, Communities and Disability Services appointed the Children’s Guardian as the “Screening Agency” for the purpose of the NDIS Worker Checks Act.

25. The paramount consideration under the NDIS Worker Checks Act is prescribed by section 3:

The health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration in the operation of this Act.

26. The Tribunal may review the administrative refusal decision because of the provisions of section 41 of the NDIS Worker Checks Act which are:

41 Administrative review of decisions

(1) A person who is aggrieved by any of the following decisions (reviewable decisions) may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision:

(a) a decision to refuse to grant an application for a clearance (including a decision to terminate an application for a clearance),

(b) a decision to impose an interim bar on an applicant for a clearance,

(c) a decision to suspend a clearance,

(d) a decision to cancel a clearance (other than cancellation at the request of the holder of the clearance).

Note. Administrative review of a decision cannot be applied for until an internal review of the decision has been applied for and finalised. See sections 53 and 55 of the Administrative Decisions Review Act 1997.

(2) An application for administrative review (including internal review) under the Administrative Decisions Review Act 1997 cannot be made to the Tribunal in respect of a decision to impose an interim bar or to suspend a clearance until the interim bar or suspension has been in force for at least 6 months.

(3) An applicant for administrative review must fully disclose to the Tribunal any matters relevant to the application.

(4) The Screening Agency may on its own motion review a reviewable decision.

27. Pursuant to section 43 of the NDIS Worker Checks Act an “…application to the Tribunal for an administrative review of a decision under this Act does not affect the operation of the decision under review or prevent the taking of action to implement that decision.”

Standard of Proof and Onus of Proof

28. The primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal, in relation to the review of the refusal to grant an NDIS worker check clearance to the applicant: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. These matters and those in the following paragraphs have been considered by the Tribunal in the context of other administrative reviews: for example in FBC v Children’s Guardian [2021] NSWCATAD 286.

29. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

30. The Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17].

31. The NSW Supreme Court has accepted that there is no onus of proof upon either party in an administrative review. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, it was said at [74]:

“[74] Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

32. There is thus no onus of proof and consequentially a refinement of the civil standard of proof (the balance of probabilities) to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], (referred to with approval by Justice Button in Bronze Wing), as stated in the following extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

33. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017, after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

34. Neither party bears an onus of proof in relation to an application for administrative review under section 41 of the NDIS Worker Checks Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40] partially extracted below. The purpose of the NDIS Worker Checks Act is to achieve the paramount consideration stated in section 3. The Tribunal’s role in reviewing a decision to refuse an NDIS worker’s check clearance is to ensure that the paramount consideration is met when assessing and making findings on risk arising from a consideration of all of the available evidence and material before the Tribunal. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent, to determine the correct and preferable decision.

33. There is a ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons because section 41(3) of the NDIS Worker Check Act states:

…

(3) An applicant for administrative review must fully disclose to the Tribunal any matters relevant to the application…

36. The practical or forensic onus, but not the legal onus, consistent with the disclosure requirement, may be satisfied by the applicant. In support of that proposition the Tribunal refers to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated by the plurality in the High Court, comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

Required Considerations

37. The screening agency must consider the matters under section 16 of the NDIS Worker Checks Act.

38. The applicant is also required to fully disclose any matters relevant to the application as observed earlier: section 41(3) of the NDIS Worker Checks Act.

39. The Tribunal will also consider the matters in section 16 of the NDIS Worker Checks Act when reviewing the refusal decision.

40. The Tribunal is required to consider the evidence which is presented by the parties. The determination of the weight which can be given to any particular allegation or evidence, despite or because of the source from which it emanates, is ultimately a matter for the Tribunal.

Other matters

41. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), which is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: see Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

42. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons.

43. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17(1)(b) of the Civil and Administrative Tribunal Act.

44. The jurisdiction of the Tribunal is protective and not punitive in nature: see section 3 of the NDIS Worker Checks Act; compare with AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130]. The applicant has already been punished for his crime.

Consideration of the evidence

45. The Children’s Guardian was required to consider the matters referred to in section 16 of the NDIS Worker Checks Act. The evidence received by the Tribunal is considered under each of the subsections of section 16. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

The nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (known as a ‘relevant event’), and how it is relevant to NDIS work

46. The applicant faced serious charges in the NSW District Court and pleaded guilty on 8 February 2012 to conduct which occurred in July to August 2008.

47. The first charge was importing into Australia a commercial quantity of pseudoephedrine, a border-controlled precursor, intending to use, or believing that another person intended to use that substance to manufacture a controlled drug, by aiding, abetting, counselling, or procuring the commission of that offence contrary to section 307.11 of the Criminal Code (Cth).

48. The second charge was an attempt to possess a precursor, namely pseudoephedrine, intended for use in the manufacture or production of a prohibited drug contrary to section 24A(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

49. These offences are not presumptively disqualifying offences pursuant to clause 5 and schedule 2 of the National Disability Insurance Scheme (Worker Checks) Regulation 2020 (NSW), but the similar offence for importation of a commercial quantity of controlled drugs, rather than the precursors, is a presumptively disqualifying offence. A risk assessment conducted in relation to presumptively disqualifying offences presumes that a person who had committed such an offence poses a risk of harm to persons with a disability.

50. These offences in relation to the applicant are serious offences. The applicant pleaded guilty. The seriousness is reflected in the length of sentence imposed on conviction which was 9 years and 11 months to commence from May 2010, for which the applicant was released on parole in May 2016 and served the remainder of his sentence in the community. The sentence concluded in April 2020.

51. The applicant was involved with a syndicate and orchestrated and arranged with his co-accused the details of the importation. The applicant in his oral evidence to the Tribunal did not agree that he travelled to Thailand with his co-accused Mr Wilson to organise the importation. The police facts alleged that the applicant travelled to Thailand with his friend, another co-accused who was also found guilty.

52. The applicant admits what he did was wrong and was extremely sorry for what he did, but attributed his involvement to people he associated with at the time, who he says were not a good influence on him.

53. The Children’s Guardian also relies on other historical conduct of the applicant which shows that on two occasions New South Wales Police took steps to have Apprehended Domestic Violence Orders (ADVO) made to protect the applicant’s former partners and other family members.

54. The first ADVO was sought in February 2004 for the benefit of the applicant’s former partner. It was alleged that the applicant attended his former partner’s residence, threw items around, smashed the rear windscreen of his partner’s mother’s car, held his partner’s head to the ground: neighbours intervened and contacted police. The applicant allegedly stated that: “you had better sleep lightly tonight.” The applicant disputed this description in his oral evidence. The parties did not make any formal statements and the police did not bring any charges against the applicant arising from the allegations.

55. More recently in 2016 to 2017 the applicant and his partner had a dispute. The applicant did not wish to take issue with the description provided in the documents which comprised Exhibit 3 relating to the reports made to the police.

56. It was reported to the police that the applicant informed his partner, her parents, his stepdaughter and his 2 children that they had to leave his house within 2 weeks. The applicant had loud arguments with his partner. This caused the children to become concerned and they hid from him. The partner, the partner’s parents and the children all left the applicant’s home and found new premises. They did not then tell him where they lived. However, the applicant made numerous and excessive telephone calls to his partner, her parents, and his stepdaughter. This caused concern and required them to change their telephone numbers.

57. Around Christmas 2016 the applicant attended his stepdaughter’s place of work looking for her. She hid in a storeroom while the applicant waited for approximately 32 minutes trying to locate her and calling for her to come out.

58. In January 2017 the applicant and his brother came to the new premises in which his partner, her parents and his step daughter and children lived, knocking on the door, and requesting entrance despite them making it clear they did not wish to have any contact with him.

59. On Australia Day 2017 the applicant was seen waiting outside their house in a vehicle and then following his stepdaughter and his partner in their vehicle. They drove to a nearby police station and reported his conduct.

60. The following day the stepdaughter took the day off work frightened that the applicant would attend her work. The stepdaughter received messages from her work colleague that he attended her work place that day.

61. The next day the applicant was seen sitting in a vehicle outside the house of his children and then yelled at and confronted the stepdaughter’s boyfriend when he arrived to enter the house. Police attended and informed the applicant over the telephone (because he had left the premises at the time that the police were there, but the applicant’s brother was still there), that the applicant should not return and explained that he and his brother had no reason to attend the house as they knew they were not welcome.

62. The applicant sent a text message to his stepdaughter, which appears to be directed to the stepdaughter’s boyfriend, stating: “Hey mate, I don’t care who you are, don’t go back there. If you want to fuck [the stepdaughter] fuck her somewhere else, my daughters are there, pack your bags and fuck off.”

63. The applicant again attended his stepdaughter’s place of work. The applicant then contacted her employer about serving papers, and also contacted the real estate agent.

64. The applicant approached his former partner at a shopping centre and told her words to the effect: “If I really wanted to, I could take the girls I have a carload of boys here.” The applicant denied making this statement when he was questioned by the police. The applicant however acknowledged that he had been warned by police to stay away from his former partner, his stepdaughter and children. The applicant’s children are now aged around 10 and 11 years old. In 2017 they were younger and vulnerable. At this time the applicant was on parole.

65. In 2004 the applicant committed an offence of dangerous driving while he was observed by the police driving a Subaru WRX at 177 km an hour in an area with a 90 km an hour posted speed limit. It was night time and wet weather. The applicant was driving at such speed and overtook approximately 10 to 20 vehicles on the left inside lane that it caused the police to consider that his driving caused a risk of danger of “high to extreme”.

66. The primary convictions related to organised criminal activity motivated by financial gain. The applicant knew that there were significant penalties for engaging in that criminal behaviour. It is apparent that the NDIS work is likely to present opportunities for organised financial criminal activity. The applicant engaged in activity which has caused emotional and psychological distress to vulnerable people who were part of his intimate domestic relationships. After his release from prison he engaged in further emotionally damaging behaviour directed towards vulnerable persons, stalking, threatening and harassing them.

The length of time that has passed since a relevant event occurred

67. There has been a significant length of time since the drug offences were committed. The custodial sentence concluded in 2020 with part of that sentence served on parole in the community under supervision. That is relatively recent.

The vulnerability of any victim of a relevant event at the time of the event and the person’s relationship to the victim or position of authority over the victim at the time of the event

68. The drug precursor charges were undertaken with the plan for those drugs to constitute a significant amount of manufactured drugs. The large amount of ice which would have been manufactured from that precursor material had potential to cause a devastating impact upon the community. The victims of drug use are not simply the addicts or consumers who are vulnerable to exploitation by organised criminal activity. There are recognised wider community implications for large-scale drug use, particularly ice, which are detrimental to social safety and cohesion.

69. The other events in the applicant’s history concerning his family which drew the attention of the police, related to vulnerable victims with whom the applicant had a domestic relationship and over whom he exercised authority.

70. The traffic offence in 2004 shows a reckless disregard for other people’s safety in a public place to members of the public.

The person’s criminal history, history of misconduct and other relevant history including whether there is a pattern of concerning behaviour

71. The applicant committed the drug precursor offences, he states, under the influence of other people and for significant anticipated financial benefit. The applicant was under financial stress with monthly repayments of approximately $28,000 at the time of the offending behaviour.

72. The applicant worked in several trades after leaving school in Year 12. The applicant worked as a renderer, tiler, and concreter. He also opened a transport business which undertook deliveries. The applicant worked as a security guard. The applicant also went into property development with other family members purchasing property, renovating and then selling the property.

73. The domestic issues and misconduct arose from a period of high personal stress.

74. While the applicant has not committed similar offences to the drug precursor offences, there is a pattern of concerning self-focussed behaviours. These are considered to be concerning behaviours.

75. It was submitted that the applicant has a pattern of resorting to inappropriate and illegal behaviour at times of stress. There was no evidence of the applicant relying upon support services, professional counselling or psychological services to support him in times of stress. That submission is accepted as correct.

The person’s conduct since a relevant event

76. The applicant has worked continuously since he left prison in 2016. The applicant has since been professionally involved with his cousin who was a builder. The applicant commenced a building apprenticeship under the supervision of his cousin. The work which was completed were modifications of homes for disability clients. The applicant obtained his building licence in 2020. His cousin deceased May 2022.

77. The applicant obtained a Working with Children Check Clearance in 2021.

78. The applicant has renovated over 300 bathrooms and reports that have been no incidents in all the years that he has done renovations. Currently the applicant employs 3 full-time workers and has approximately 30 subcontractors that he regularly engages.

79. The applicant is the sole director of his company through which he operates. The applicant supervises his subcontractors and also performs some of the work.

80. The applicant has relied upon references in relation to the work he has performed an undertaking and completing building works for his clients. It appears that the applicant has taken over his cousin’s businesses since his unfortunate decease from his illness.

81. The Children’s Guardian did not dispute the applicant’s professional competence or general demeanour in a work context. Instead, it was considered the references and recommendations provided limited evidence relevant to assessing the risk of harm specific to the applicant’s previous offending.

82. The applicant may not require the NDIS worker check clearance in order to continue operating this business.

All other circumstances in respect of the person’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work

83. It was observed by the Children’s Guardian that the applicant was relatively young, being 27 years of age, when he participated in the precursor offences. The offences themselves were reasonably sophisticated as has also been observed by the Children’s Guardian. The motivation for the offences is a combination of financial stress, perceived financial advantage, and influence from friends and associates with whom the applicant engaged in the joint criminal activity. The applicant did not have regard to the consequences, not only to his own family, but to the wider community and vulnerable victims by engaging in this behaviour.

84. A great deal of community trust is reposed in people undertaking NDIS work. There is a financial incentive to complete the work and there is limited evidence that the applicant would not be motivated in stressful circumstances to engage in exploitative behaviour, including adversely affecting emotional or financial well-being.

85. It is considered that in assessing the evidence as to risk, the Tribunal is not required to find that there is a likelihood of repetition of the same conduct/misconduct. All that is required is the presence of risk of a sufficient level, not necessarily likely or significant risk of harm but the presence of a risk of harm.

Such other matters as the Children’s Guardian considers appropriate

86. The Children’s Guardian did not rely on other matters.

87. There remains an issue about a non-publication order which the Children’s Guardian submitted should not apply to the applicant.

88. The Children’s Guardian consented to an order anonymising the stepdaughter’s name, but otherwise submitted that there should be no anonymisation of the applicant’s name. These reasons do not name the applicant’s stepdaughter and there is no identification of any other family members in these reasons.

89. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in section 64:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

90. It is evident from the Civil and Administrative Tribunal Act and the NDIS Worker Checks Act that the principles of open justice apply to proceedings under those Acts.

91. The Court of Appeal in the case of Tilley v Children’s Guardian [2017] NSWCA 174 considered a non-publication or suppression order following a risk assessment in a protective jurisdiction at the conclusion of the substantive matter.

92. In Tilley the Court of Appeal observed at [45]-[47] when considering a suppression order that:

45. While it is true that material revealing the allegations of unlawful conduct was not put before the Tribunal, or the Court, by the appellant, but rather by the Children’s Guardian, the presentation of such material was an inevitable consequence of the appellant’s application for a clearance and his challenge to the refusal of the Children’s Guardian to grant such a clearance. Although the disclosure of such material might well be distressing and embarrassing to the appellant (although he gave no evidence to that effect) he had no basis to resist its disclosure in response to his own application.

46. There is, no doubt, a public interest in allowing a person against whom allegations of sexual assault have been made to test and, if possible, answer those allegations in the course of seeking a clearance from the Children’s Guardian. That process does not engage the public interest in open justice. Nor is it necessary to consider whether the appeal to the Tribunal was properly undertaken in conditions of anonymity. However, when the matter reached a court, the principle of open justice was engaged and a suppression or non-publication order could only be made in the circumstances envisaged by s 8(1).

47. In applying the well-established principles discussed above, the requirement of s 8(1)(a) is not satisfied. Nor is par (d) engaged. If there were some other public interest in non-disclosure which “significantly outweighs the public interest in open justice” it was not identified in the present case. Accordingly, it is appropriate to revoke the non-publication order with respect to the identification of the appellant made on an interim basis in the course of the hearing of the appeal.

93. The principles of open justice were conveniently referred to in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 at [26]–[28]:

26. The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477):

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction.

27. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

28. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle.

94. The question for the Tribunal, when considering an application for a non-publication order under s 64(1) of the Civil and Administrative Tribunal Act 2013, is whether the Tribunal is satisfied that the making of the order sought is desirable ‘by reason of the confidential nature of any evidence or matter or for any other reason’.

95. The Tribunal considers that the name of a person who brings an application under the NDIS Worker Checks Act is expected to be disclosed unless there is a good reason for the making of a non-publication order. The applicant’s prior criminal proceedings were not the subject of a suppression order. The risk of embarrassment or humiliation is not a good enough reason (see Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]).

96. There is no confidential evidence or matter, or any other good reason for a non-publication order in relation to the applicant.

97. The names of the applicant’s children and step-child(ren) will be the subject of a non-publication order, as there is no public interest in their publication.

Conclusion

98. The applicant has engaged in a pro-social lifestyle since his release from prison on parole. The time since completing parole, however, is relatively short.

99. The applicant’s willingness to engage in planning and importing commercial quantities of precursor drugs and large-scale criminal activity for personal gain is a serious and concerning aspect of his personality. There is a likelihood of significant financial and other psychological or emotional harms to any future victims including people with disability.

100. Section 13 of the NDIS Worker Checks Act provides that the risk of harm must be real and appreciable, but does not need to be likely or significant and the risk of harm need not arise from recent events.

101. A real and appreciable risk is a risk that is greater than the risk of any adult preying on a person with disability: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115; BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33]; FPV v Children’s Guardian [2023] NSWCATAD 59.

102. The health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration. The detrimental effect of type of harm includes a broad range of effects namely physical, psychological, emotional or financial well-being.

103. In all the circumstances, based on the material before it, the Tribunal on its own assessment of the applicant, is satisfied that the applicant does pose a real and appreciable risk to the safety of people with disability.

104. The correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

105. The orders of the Tribunal are that:

1. The decision of the respondent on Internal Review dated 7 September 2022 to issue Eamad John Saba with an exclusion and refuse to grant Eamad John Saba a clearance is affirmed.

2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicant’s children and step children (including any other identifying information as provided in section 64(4)) in connection with these proceedings is prohibited.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

19 June 2023 - Remove First Name on Decision Coversheet

Decision last updated: 19 June 2023