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 MemberDecision: 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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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
Texts Cited: Nil Cited
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- Case
- [2023] NSWCATAD 156
- Decision Date
CaseChat Overview and Summary
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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