Eamad Saba v Children's Guardian

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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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

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Details
Case
[2023] NSWCATAD 156
Decision Date

CaseChat Overview and Summary

The case of Eamad Saba v Children's Guardian involved an application for review of a decision by the respondent to issue the applicant with an exclusion from the NDIS Worker Scheme and to refuse him a clearance. The decision was grounded on concerns about the risk of harm that the applicant might pose to children, which led to the application for internal review being dismissed. The applicant, Eamad Saba, sought judicial review of the decision in the Civil and Administrative Tribunal of New South Wales, which was subsequently appealed to the Supreme Court.

The primary legal issues before the court involved the interpretation of the statutory provisions governing the NDIS Worker Scheme, specifically those concerning the issuance of exclusions and refusals of clearances. The court had to determine whether the risk of harm posed by the applicant was real and appreciable, and whether it was likely or significant. Additionally, the court examined the weight of the evidence presented, the current risk posed by the applicant, and the implications of a non-publication order on the principle of open justice.

In its reasoning, the court examined the evidence provided and concluded that the risk of harm posed by the applicant was indeed real and appreciable. It found that the evidence supported the conclusion that the risk was likely or significant, and thus upheld the respondent's decision. The court also addressed the issue of the non-publication order, determining that it was in the best interests of the children to protect their identities and that such an order did not undermine the principle of open justice. The appeal was dismissed, affirming the respondent’s decision.

The court's final orders affirmed the respondent's decision to issue Eamad John Saba with an exclusion and to refuse him a clearance. It also granted a non-publication order, prohibiting the disclosure of the names of the applicant's children and stepchildren in connection with these proceedings. This was done to protect the identities of the children and to uphold the principle of open justice while considering the best interests of the children.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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