Owabor v Children’s Guardian - [2024] NSWCATAD 34

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Owabor v Children’s Guardian [2024] NSWCATAD 34
Hearing dates: 27 October 2023
Date of orders: 12 February 2024
Decision date: 12 February 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, Senior Member
J Herberte, General Member
Decision:
1. The order made on 6 July 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant, is revoked.
2. The decision of the respondent on internal review dated 9 June 2023 to issue Nosa Owabor with an exclusion and refuse to grant Nosa Owabor a clearance, is affirmed.

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

Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Criminal Code (Cth) 1995
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:
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41NSWSC 523
FPV v Children’s Guardian [2023] NSWCATAD 59
John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465
Olunwabusor v Children’s Guardian [2023] NSWCATAD 199
Saba v Children's Guardian [2023] NSWCATAD 156

Texts Cited:
None cited

Category: Principal judgment
Parties: Nosa Owabor (Applicant)
Children’s Guardian (Respondent)
Representation: Lucky Iyare & Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00189900
Publication restriction: Nil

REASONS FOR DECISION

Introduction

On 2 June 2021, Nosa Owabor (‘the applicant’) applied for a clearance (the Clearance) pursuant to s 6 of the National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018(NDIS Check Act). On 20 March 2023, the Children’s Guardian (Children’s Guardian) refused the Clearance pursuant to 11(1) of the NDIS Check Act after conducting a risk assessment because of the applicant’s criminal history. The Children’s Guardian concluded that the applicant poses a risk of harm to persons with a disability.
On 9 June 2023 following an internal review of that decision at the applicant’s request, the decision was affirmed.
On 13 June 2023, the applicant filed in this Tribunal an application for administrative review of the Children’s Guardians refusing her a Clearance.
The Children’s Guardian opposes the application and maintains that the Tribunal should affirm the decision to refuse the grant of a Clearance to the applicant.
Having regard to the statutory provisions which we outline below, as well as the evidence considered in these proceedings, we find that the applicant continues to pose a risk of harm to persons with a disability. As a result, the Children’s Guardian’s decision is affirmed.

Background

The applicant wishes to work within the disability sector as a support worker. It is not disputed that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Owabor v Children’s Guardian

Details

AGLC: Owabor v Children’s Guardian [2024] NSWCATAD 34
Case: [2024] NSWCATAD 34
Decision Date: 12 February 2024

CaseChat Overview and Summary

Nosa Owabor, a job applicant, sought to challenge the Children’s Guardian’s decision to exclude him from working with children due to concerns about his risk of causing harm. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The primary issues before the Tribunal were whether the risk of harm posed by Mr Owabor was real and appreciable, and whether the risk was likely or significant. The court also considered the weight of evidence presented and the current risk to children.

In determining these issues, the Tribunal examined the statutory framework and case law concerning the NDIS Worker Checks. It noted the importance of balancing the rights of individuals with the need to protect vulnerable persons, particularly children. The Tribunal found that the evidence presented by the Children’s Guardian was sufficient to establish a real and appreciable risk of harm, which was likely and significant. The Tribunal affirmed the decision of the Children’s Guardian to exclude Mr Owabor from working with children and refused his application for internal review.

The Tribunal revoked the earlier order allowing the publication of Mr Owabor’s name, acknowledging the potential harm such publication could cause to his reputation and personal circumstances. The decision highlighted the serious consequences of being listed on the exclusion register and the importance of a thorough and fair assessment process. The Tribunal’s decision was grounded in the statutory objectives of protecting children while also considering the rights and circumstances of the individual concerned.

Orders

Orders of the court

1. The order made on 6 July 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant, is revoked.

2. The decision of the respondent on internal review dated 9 June 2023 to issue Nosa Owabor with an exclusion and refuse to grant Nosa Owabor a clearance, is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Owabor v Children’s Guardian [2024] NSWCATAD 34
Hearing dates:	27 October 2023
Date of orders:	12 February 2024
Decision date:	12 February 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member J Herberte, General Member
Decision:	1. The order made on 6 July 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant, is revoked. 2. The decision of the respondent on internal review dated 9 June 2023 to issue Nosa Owabor with an exclusion and refuse to grant Nosa Owabor a clearance, is affirmed.
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
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Criminal Code (Cth) 1995 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:	Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41NSWSC 523 FPV v Children’s Guardian [2023] NSWCATAD 59 John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 Olunwabusor v Children’s Guardian [2023] NSWCATAD 199 Saba v Children's Guardian [2023] NSWCATAD 156
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Nosa Owabor (Applicant) Children’s Guardian (Respondent)
Representation:	Lucky Iyare & Associates (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00189900
Publication restriction:	Nil