XY v Director-General, Education Directorate - [2018] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

XY v DIRECTOR-GENERAL, EDUCATION DIRECTORATE (Administrative Review) [2018] ACAT 68

AT 7/2018
Catchwords: ADMINISTRATIVE REVIEW– suspension of school student with a disability – in application for merits review allegations of denial of procedural fairness, failure to follow correct procedure, bias and cover-up in internal review – in merits review tribunal determining correct or preferable decision not reviewing reasons for the decision – allegations unsubstantiated – conditions precedent to suspension –decision under review confirmed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7, 68
Education Act 2004 ss 6, 7, 8, 36, 140, 144, 145, 145A

Subordinate
Legislation cited: Explanatory Statement, Education Bill 2003

Cases cited:Director of Housing v Sudi [2011] VSCA 266
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
MZAAV v Minister for Immigration and Anor [2014] FCCA 2805
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Tribunal: Presidential Member E Symons

Date of Orders: 29 June 2018
Date of Reasons for Decision: 29 June 2018

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 7/2018

BETWEEN:XY

Applicant
AND: DIRECTOR-GENERAL, EDUCATION DIRECTORATE
Respondent

TRIBUNAL: Presidential Member E Symons

DATE:29 June 2018
ORDER

The Tribunal orders that:

The decision under review is confirmed.

………………………………..
Presidential Member E Symons

REASONS FOR DECISION

Introduction

These proceedings have arisen as the result of the decision on 28 June 2017 (original decision) to suspend the applicant’s child for 1.5 days from the government primary school (primary school) the child was attending.
Given the subject matter of the proceedings the names of the applicant and the applicant’s family have been anonymised. The applicant is referred to as XY, the applicant’s wife as VW and their child as ZZ.
After ZZ was suspended XY sought an internal review of the original decision. On 19 September 2017 the respondent upheld the original decision (reviewable decision). XY has sought review by the tribunal of the reviewable decision.
In these reasons for decision the tribunal hearing this matter is referred to as Tribunal. References to tribunal in these reasons refer to the ACT Civil and Administrative Tribunal or the tribunal generally.

Summary of Decision

The reasons below explain why the Tribunal has confirmed the reviewable decision. The Tribunal has found that XY’s allegations have not been substantiated, that the requirements in subsection 36(1) and the procedural requirements in subsection 36(5) of the Education Act 2004 (Education Act) were met, regard was had to the matters raised by XY and to the relevant policies and that the reviewable decision was the correct or preferable decision.

Background

ZZ joined the primary school in 2015 and attended a Kindergarten-aged cohort. Prior to this ZZ was attending Malkara School which provides education for students with a significant intellectual disability and other associated impairments. In 2017 ZZ was a student at the primary school.
ZZ has been diagnosed with Autism Spectrum Disorder (ASD). ZZ has been in a specialist teaching unit[1] for children diagnosed with ASD at the primary school. ZZ was attending “school and classes within a highly modified and differentiated learning environment.”[2] ZZ had access to a range of support professionals including occupational therapists, the Network Student Engagement Team (NSET), Disability Education Partners and School Inclusion Officers.
[1] The Learning Support Unit (LSUA)
[2] Statement of Reasons, Tribunal (T) documents, page 2 [6]
An agreement was in place with ZZ’s parents and the primary school that if high-level behaviours persisted for over an hour, ZZ’s parents would be contacted and would take ZZ home. This agreement was initially detailed in ZZ’s 2016 Positive Behaviour Support Plan.
XY said ZZ “is considered a severely autistic child with limited cognitive abilities.”[3]
[3] Additional information for Reasons for applying for review. T documents page 22, [3]
In the week leading up to ZZ’s suspension, ZZ had become increasingly violent towards classmates and teachers.
On 28 June 2017 the Principal of the primary school issued ZZ with a one-and-a-half day suspension for 28 June (half day) and 29 June 2017. ZZ did not immediately return to the primary school following the suspension due to illness. ZZ no longer attends the primary school. He is attending Malkara School.
The Principal wrote a letter to ZZ’s parents, XY and VW, on 28 June 2017 which, omitting formal parts, stated[4]:
[4] T Documents, page 66
This is to confirm the conversation you had with [Deputy Principal] in which you were informed of the school’s decision to suspend [ZZ] consistent with the suspension procedures of the Education and Training Directorate and … Primary School’s student management policy.
We are satisfied that [ZZ] has breached [ZZ’s] responsibilities for acting in a safe and respectful manner at school. It is our decision that your child is suspended for:
Number of Days: 1.5
Date 28/06/2017 Half day and 29/06/2017 Whole day
For the following reason (further documented in the attached (Suspension Report)
1) Repeatedly behaving in a way resulting in harm to other students
A meeting will be held to develop an agreed program to support re-entry.
With: [Deputy Principal]
Date 30/06/17 Time: 8.45am
Your involvement in this meeting is very important in achieving a successful resolution and I hope you are able to attend.
You may wish to have a support person at the meeting. You are responsible for the care and safety of your child until [ZZ] returns to school. [ZZ] should continue with studies during the suspension period and should not attend any public school during the suspension period unless invited by the principal for a meeting.
If you feel that correct procedures have not been followed or that an unfair decision has been made, you may appeal in accordance with the procedures, information about submitting an appeal is also enclosed.
Please contact me if you would like to discuss this further. I would like to assure you of the school’s commitment in working with you to assist and support your child. Thank you for your continued support of the work we are doing to support [ZZ].
The Suspension Report set out the following reason for the suspension action[5]:
(C) PHYSICAL ABUSE OF OTHERS (STAFF OR STUDENTS):
assault, fighting, bullying, any deliberate act which results in bodily harm to others.
[5] T documents, page 67-68
The Suspension Report also stated that the following steps had been taken by the school prior to the suspension:
1.       Given the student an opportunity for a fair hearing and discussed the implications and consequences of behaviour with the student,
2.       Discussed the issue with parents/carers – advised parents/carers of appeal rights,
3.       Undertaken staff consultation and discussion,
4.       Followed the established in-school student management procedures
5.       …
…
10.     Other – (please specify) Please note that we did talk with [ZZ] regarding hitting and hurting other students however it remains to be seen whether [ZZ] fully understands the consequences of [ZZ]’s actions.
SCHOOL COMMENT:
[ZZ] has hit 7 children this week (3 today) resulting in this decision to give [ZZ] a break from being at school.
…
This letter and the appeal documentation were left at the primary school’s front desk for collection by the parent collecting ZZ on 28 June 2017. The letter was not collected. The Deputy Principal said it was subsequently mailed to ZZ’s parents at the commencement of Term 3.
On 15 August 2017 the respondent received XY’s Appeal against the original decision. The grounds stated in the Appeal were:
Correct Procedures have not been followed; and
An unfair decision has been made.[6]
[6] T documents, page 89
The respondent conducted an internal review and on 19 September 2017 Kate Smith, Director School Improvement – Tuggeranong Network, wrote to XY stating: I have made the decision to uphold the original suspension.[7] (reviewable decision)
[7] T documents, page 18
When the respondent became aware that XY had not received the letter referred to in the previous paragraph, a copy of that letter was emailed to XY on 22 December 2017.

The Proceedings

XY filed an application for review (application) of the reviewable decision on 16 January 2018. XY alleges in the application that:
(a)The respondent failed to take “several critical facts and relevant context into consideration” before reaching the decision; and
(b)“careful consideration” of facts and context would render the original decision to suspend ZZ “in contrary to the underlying principles of the Education Act 2004 and the Suspension, Exclusion or Transfer of Students in ACT Public Schools Policy 2010”.
XY also alleges in the application that the correct procedures were not followed pursuant to section 36 of the Education Act.
Attached to the application was a document entitled ‘Additional Information for REASONS FOR APPLYING FOR REVIEW’ in which XY alleges:
(a)a careful consideration of the facts and context would render the decision to suspend ZZ in violation of section 7(2)(b)(v) of the Education Act;
(b)the observations/comments made in the letter appear biased in favour of the school;
(c)the decision maker received differing information from the school from the information provided by XY and VW to the respondent;
(d)the decision maker preferred the information provided by the school without seeking clarification from the applicant;
(e)the decision maker’s decision may not be fair and transparent, in violation of the principles of the Public Sector Management Act 1994.
XY’s submissions indicate that XY seeks the following relief:
(a)Review of the decision made by the respondent to uphold the original decision to suspend ZZ on 28 June 2017.
(b)Withdrawal of suspension; Action against the respondent to suspend ZZ in “wilfully wrong manner” to “cover [the respondent’s] incompetence and negligence”.
(c)Appropriate action against the respondent for submitting wilfully false statement by [name of Deputy Principal], the Deputy Principal, “to cover [Deputy Principal’s] decision”.
(d)Appropriate action against the respondent for “humiliating the applicant and his wife”, on numerous occasions, clearly “inflicting humiliation in a wilful manner”.
(e)Appropriate action against the respondent for “negligence and incompetence” in dealing with issues related to [ZZ], which resulted in the suspension.
(f)Review of the respondent for their capability to support children like [ZZ] to “ensure others do not meet the same fate”.
On 23 February 2018 the respondent filed the Tribunal documents (T documents) which included a Statement of Reasons (Exhibit R3) and the documents or part of documents in the respondent’s possession and considered by it to be relevant to the review of the reviewable decision by the tribunal.
On 26 February 2018 Directions were made for the filing of further material by both parties and the application was set down for hearing for three days commencing 30 May, 2017. XY filed a statement on 20 March 2018 and submissions on 13 April 2018 (Exhibit A1). The respondent filed a statement by the Deputy Principal on 11 May 2018 (Exhibit R1) and submissions on 11 May 2018 (Exhibit R2).
The application was heard on 30 May 2018. XY represented the himself. XY and VW gave evidence. Ms Nadiah Tarbet, Solicitor with the ACT Government Solicitor, appeared for the respondent. The respondent called evidence from Ms Kate Smith, the reviewable decision maker. All witnesses were cross examined. At the conclusion of the hearing on 30 May 2018 the Tribunal reserved the decision and vacated the hearing dates of 31 May and 1 June 2018. This is the Tribunal’s decision.

Legislative Framework
ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)

Division 6.3 of the ACAT Act provides the powers of the tribunal when conducting an administrative review of a reviewable decision.
Section 68 of the ACAT Act provides:
Review of decisions
(1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity for making the decision.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104)
(3) The tribunal must, by order—
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and—
(i) make a substitute decision; or
(ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Education Act – principles and objects

Part 1.2 of the Education Act sets out the following principles and objects of the Act:
7. General principles of Act
(1) Everyone involved in the administration of this Act, or in the school or home education of children in the ACT, is to apply the principle that every child has a right to receive a high-quality education.
(2) Without limiting subsection (1), a high-quality education is based on the following principles:
(a) school education and home education provide a foundation for a democratic society;
(b) school education and home education should—
(i) aim to develop every child's potential and maximise educational achievements; and
(ii) promote children's enthusiasm for lifelong learning and optimism for the future; and
(iii) encourage parents to take part in the education of their children, and recognise their right to choose a suitable educational environment; and
(iv) promote respect for and tolerance of others; and
(v) recognise the social, religious, physical, intellectual and emotional needs of all students; and
(vi) aim over time to improve the learning outcomes of students so that the outcomes are free from disadvantage because of economic, social, cultural or other causes; and
(vii) encourage all students to complete their senior secondary education; and
(viii) provide access to a broad education; and
(ix) recognise the needs of Indigenous students;
(c) innovation, diversity and opportunity within and among schools should be encouraged;
(d) effective quality assurance mechanisms should be applied to school education;
(e) government funding should be directed to students through their schools or school system;
(f) the partnership between the home, community and educational providers should be recognised;
(g) school communities should be given information about the operation of their schools.
(3) Everyone involved in the administration of this Act, or in the school education of children in the ACT, is to apply the principle that school education—
(a) recognises the individual needs of children with disabilities; and
(b) should make appropriate provision for those needs, unless it would impose unjustifiable hardship on the provider of the school education.
(4) Corporal punishment is not allowed in ACT schools.
The main objects of the Education Act are provided in section 8 and, relevantly, include the following:
(a) to state the responsibilities of parents and the government in relation to education and the principles and values on which government and non-government school education and home education are based; and
(b) to promote compulsory education … and
(c) to state the circumstances in which school attendance is not required, including providing for suspension and exclusion from school; and
…

Education Act – suspension

Matters of enrolment, including suspension and exclusions, are provided for in Part 3.3 of the Education Act. Section 36 of the Education Act provides for the suspension of a student’s enrolment. It may be summarised as follows:
(a)The principal of a school may recommend to the Director-General that a student be suspended from a school for a period of no longer than 20 days, if the principal is satisfied of the matters set out in subsection 36(1) of the Education Act (subsection 36(2)) and that action should be taken under section 36;
(b)The power to suspend a student’s enrolment is enlivened if:
(a)    The student is attending a government school (subsection 36(1)(a)); and
(b)   The student threatens to be violent or is violent to another student attending the school, a member of the staff of the school or anyone else involved in the school’s operation (subsection 36(1)(ii)); or
(c)    The student acts in a way that otherwise threatens the good order of the school or the safety or wellbeing of another student attending the school a member of staff of the school or anyone else involved in the school’s operation (subsection 36(1)(iii)); or
(d)   The student displays behavior that is disruptive to the student’s learning or that of other students (subsection 36(1)(iv)).

(c)The Director-General may suspend or transfer the student only if the following criteria have been met (subsection 36(5)):
(i)      the student’ parents have been given an opportunity to be consulted, and told in writing, about the proposed suspension or transfer of the student and the reasons for it; and
(ii)     as far as the student’s maturity and capacity for understanding allow, the participation of the student has been sought, and any views of the student considered, in deciding whether to suspend or transfer the student; and
(iii)    the student has been given sufficient information about the decision-making process, in a language and way that the student can understand, to allow the student to take part in the process; and
(iv)    the student has been given a reasonable opportunity to continue the child’s education during the suspension.
(d)Despite subsection 36(5), under subsection 36(6) the Director-General may immediately suspend the student for not longer than five days if, in the director-general’s opinion, the circumstances are of such urgency or seriousness to require the child’s immediate suspension.
(e)If exercising the discretion to suspend a student under subsection 36(6) the Director-General must comply with the requirements of subsection 36(5)(a) to (d) to the extent that it is practicable and appropriate to do so.
(f)Under subsection 36(8), to remove any doubt, the Director-General may suspend the student under subsection 36(6) while deciding what other action (if any) should be taken in relation to the student under this section.

Section 6(2) of the Education Act defines a parent as:
a person having parental responsibility for the child under the Children and Young People Act 2008
The terms ‘violence’, ‘wellbeing’ or ‘safety’ are not defined in the Education Act. The respondent submits and the applicant did not dispute that they should be given their plain and ordinary meaning and referred the Tribunal to the following definitions of the terms in the Macquarie Dictionary:
(a)‘Violence’ means “rough force in action” or “rough or injurious action or treatment”.
(b)‘Wellbeing’ means a good or satisfactory condition of existence or welfare.
(c)‘Safety’ means the state of being safe; freedom from injury or danger; or the quality of insuring against hurt, injury, danger or risk.
The Suspension, Exclusion or Transfer of Students in ACT Public Schools Guidelines (Guidelines) and the Suspension, Exclusion or Transfer of Students in ACT Public Schools Procedure (Procedure) guides the exercise of the power in section 36 of the Education Act.

Education Act – internal review

Part 6.1 of the Education Act provides for notification and review of decisions made under the Education Act.
Section 140 of the Education Act defines an internally reviewable decision as a decision (other than a decision made personally by the Minister or director-general) mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision, and relevantly includes a decision to suspend a student under section 36 of the Act.
Section 144 of the Education Act provides for internal review of an internally reviewable decision by someone (the internal reviewer) other than the decision maker. Subsection 144(2) of the Education Act provides that the internal reviewer must, within 28 days after the decision-maker receives the application for internal review (a) confirm the decision, or (b) vary the decision, or (c) set aside the decision and substitute its own decision.
Section 145 of the Education Act relevantly provides that if an internally reviewable decision is made, a reviewable decision notice must be given to each entity that is given an internally reviewable decision notice.
Pursuant to section 145A of the Education Act an entity, or any other person whose interests are affected by the decision, may apply to the ACAT for review of a reviewable decision.

Consideration

The Tribunal is required to conduct a merits review and to determine whether the reviewable decision was the correct or preferable one on the material before the Tribunal. In the decision of the Federal Court of Australia n Minister of Immigration and Ethnic Affairs v Pochi (Pochi)[8] Smithers J referred to the following statement by Bowen CJ and Deane J in the decision of the High Court in Drake v Minister for Immigration and Ethnic Affairs (Drake)[9]:
... It [the tribunal] is subject to the same general restraints to which the administrative officer whose decision is under review was subject, namely that the relevant power must not be exercised for a purpose other than that for which it exists . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored, ... Thus natural justice must be afforded to the applicant.
[8] (1980) 44 FLR 41
[9] (1979) 24 ALR 577, 589
The tribunal, in conducting an administrative review, is said to ‘stand in the shoes’ of the original decision maker. This means that the tribunal considers afresh, the information and evidence before the reviewable decision maker and any relevant new or updated evidence before the tribunal and independently and impartially weighs and assesses the evidence in coming to a new decision. The reasons for coming to the new decision may be the same as, or different from, those of the reviewable decision maker.
The tribunal must make the “correct or preferable decision”.[10] This recognises the difference between a matter susceptible of only one decision in which case the correct decision must be made and a decision which requires the exercise of a discretion or selection between more than one available decision and the decision settled upon is the best that could have been made on the basis of the relevant facts, or the preferable decision.
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J
In determining what is a relevant consideration when exercising a discretion the Tribunal must have regard to (a) the express terms of the statute that confers the power to exercise the discretion, in this matter the Education Act, and (b) any terms that may be implied from the subject matter, scope and purpose of that statute.[11]
[11] Respondent’s submissions at [15], Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 per Basten JA citing Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 39
Whilst a Tribunal is not bound to apply the administrative policies which may have guided the reviewable decision maker’s decision, it is generally entitled to take administrative policy into account as a relevant factor on review.[12]
[12] Drake at 591
The Tribunal’s task does not authorise it to review the reasons for the decision under review.[13]

XY’s evidence

[13] Drake at 599

XY told the Tribunal that the decision under review was wrong and was not fair as the decision maker did not take several critical facts and relevant context into account before reaching her decision when she was reviewing the original decision. He also said that the correct process was not followed and that there was no timely communication from the school with XX and VW.
XY said that the Deputy Principal did not call VW on 28 June 2017 and the statement by the Deputy Principal that the Deputy Principal had called and spoken to VW in the early afternoon on 28 June 2017, informed VW that ZZ would be suspended, stated that a letter will be waiting for VW to collect from the school office before collecting ZZ from the classroom and asked VW to pick ZZ up, was wrong.
XY knew that the Deputy Principal had stated that the Deputy Principal had spoken with VW in the early afternoon of 28 June 2017 and asked VW to collect ZZ and, due to the severity of the harm ZZ was causing, the Deputy Principal needed to make the suspension formal in order that ZZ’s peers have some time to recover and, perhaps, be able to welcome ZZ back to the classroom. XY also knew that the Deputy Principal had stated that VW was advised in that telephone conversation that the suspension documentation would be at the front office for collection when VW collected ZZ.
XY disputed the Deputy Principal’s statements in the previous paragraph. XY said at the hearing that he, not VW, had been telephoned on 28 June 2017 and asked to pick ZZ up. XY said he picked ZZ up from school on 28 June 2017 and when doing that he spoke to the class teacher who did not tell him that ZZ was suspended. XY said being suspended is a big thing, it has a big impact on the family and the class teacher should have raised it with him.
Given that there was a factual dispute in relation to this telephone call, XY expected that the reviewable decision maker would have discussed this with him. XY asked why the reviewable decision maker did not discuss this discrepancy in XY’s statement and the Deputy Principal’s statement to Mr Dillon with him. XY said the internal reviewer did not talk with him and he was not properly consulted. Correct procedures had not been followed.
XY said that the Deputy Principal had telephoned him around 5 or 6 that afternoon (28 June 2017) and told him that the staff had been brainstorming and decided to suspend ZZ to give a break to the other children in ZZ’s class. That was the first time he heard about the suspension. XY queried why the Deputy Principal would telephone him that afternoon if the Deputy Principal had already spoken to VW that day, as the Deputy Principal had stated had happened.
XY also said that the Deputy Principal told him in this phone call that suspension was the only legal way to send ZZ home. XY told the Tribunal that if this was the case then he wondered whether the school contacting him or VW in the past and asking them to take ZZ home because of ZZ’s behaviour was illegal.
XY also told the Tribunal that the primary school was aware of his request that he be the first point of contact because VW gets stressed by the contact from the school. XY explained it this way – “If [ZZ] has done something silly I will come and pick [ZZ] up.” XY posed the question – “Why then did the Deputy Principal say [the Deputy Principal] called VW? It doesn’t make sense.”
XY told the Tribunal that suspending ZZ was not the best course of action or way to achieve the best outcome. ZZ had been acting like this consistently. There were other options which would achieve the same outcome. XY and VW had had an arrangement with the school whereby if ZZ’s high-level behaviours persisted for over an hour to telephone one of them, usually VW, who would come to the school and pick ZZ up. They were not given this option on 28 June 2017. If ZZ had been sent home on this occasion it would, in XY’s opinion, have achieved the same outcome as the suspension, as when ZZ had been sent home in the past XY and VW often kept ZZ at home for another day. XY also queried why the school did not transfer ZZ, for example to Malkara, instead of suspension.
XY said he felt that the written material he had provided in support of his appeal had not been properly considered by the internal reviewer.
XY told the Tribunal that the internal reviewer’s decision was biased because it was determined on the school’s opinion and that was not fair.
XY also queried why the primary school did not warn him and VW on 26 June 2017 that ZZ was facing suspension. They had been told that ZZ had hit four children that day and asked to pick ZZ up. XY said “we were not afforded natural justice. The primary school had had plenty of opportunities in the past to warn us.”
XY also said he did not understand why the Deputy Principal had spoken with ZZ on 28 June 2017. ZZ was then aged 7. ZZ did not understand anything. ZZ did not understand the consequences of ZZ’s actions. The Deputy Principal could have discussed the situation with him and VW as “we are [ZZ]’s parents and responsible for [ZZ]’s actions. Instead, they suspended [ZZ] to cover their own actions or inactions.” XY expanded on this statement by saying that ZZ’s behaviour was well known; ZZ has seen many professionals but in reality the primary school did not support ZZ as they did not manage ZZ’s actions or take appropriate action in the past.
XY queried the coincidence of the suspension on 28 June 2017 for 1.5 days when the school term was finishing on 30 June 2017 and asked “What planning would they do in 1.5 days? How can they achieve or repair the situation in 1.5 days?”
XY told the Tribunal that ZZ’s behaviour was not intentional. XY asked whether anyone had checked this with the school. XY also asked whether ZZ’s development delay had been considered in reviewing the suspension decision.
XY told the Tribunal that he found some parts of the letter advising XY of the outcome of the reviewable decision offensive, especially that sentence which encouraged XY and VW to work with the school. XY said he was furious because the internal reviewer was obviously not aware how much effort he and VW had already put in.

XY’s witness statement

In XY’s witness statement[14] dated 8 April 2018, XY stated that XY had spoken with the primary school around lunch time on 28 June 2017 and he was “informed by the school to pick [ZZ] up”. When XY picked ZZ up the school teacher advised him that “the Deputy Principal wanted us to pick [ZZ] up because [ZZ] had hit several students.”
[14] Exhibit A1, page 96
XY also stated that XY received a call from the school round 6pm that day and was informed that the school had a brain storming session and they decided to suspend ZZ. XY was not told the suspension was formal.
XY further stated that the school did not inform XY about the suspension letter at all. VW informed him about the suspension letter when she received it from the reception staff.

VW’s evidence

In VW’s oral evidence she said that VW did not talk to the Deputy Principal of the primary school on 28 June 2017.
In cross examination VW said that when ZZ attended the primary school, after having attended Malkara, she noticed ZZ became more frustrated and there was an increase in ZZ’s behaviour which caused difficulties.
VW said ZZ was non-verbal at school and exhibited a range of behaviour. This included hitting (h--)self in the head, banging doors and tables, throwing things and pushing when something was happening that ZZ did not want, for example, if a child stood near to ZZ’s father. When ZZ was frustrated or worked up the primary school would call VW and she would collect ZZ early. This happened frequently.
When asked if she recalled 26 June 2017 or the week of 26 June 2017, she said that she did not remember. However, she told the Tribunal she was stressed and agreed that the week of 26 June 2017 was a stressful week and that she had been getting more calls from the primary school to collect ZZ than in the previous year.
VW subsequently recalled that ZZ had been sent home on 26 June 2017 because ZZ had hit a number of children. VW kept ZZ home the next day, not because ZZ was tired from not getting to sleep until 4am which XY had stated in his submissions (Exhibit A1 at [40]), but because the school holidays were coming up; ZZ had already hit the children; if VW sent ZZ to school on 27 June 2017 she believed ZZ could hit the children and be sent home again.
When it was put to VW in cross examination “You do not recall the 28^th (June) clearly or what happened then?” VW said “I don’t know”.
In re-examination VW was asked if she could now recall what happened on 28 June 2017 and she said that she had dropped ZZ at school and at 12 or 2pm. XY told VW he was going to pick ZZ up from school because ZZ had hit some children. VW said she did not know that ZZ had been suspended when XY brought ZZ home that day. She described this time as stressful.
VW also said that XY had taken a call on his mobile phone between 5pm and 6pm that day. After the call XY told her it was the Deputy Principal from the primary school; there was a discussion about ZZ hitting; the teacher was stressed and ZZ had been suspended.
When asked in re-examination, why ZZ was at home on 27 June 2017 VW said that she did not remember exactly.

VW’s witness statement

VW’s witness statement dated 31 March 2018 stated that VW did not receive a call from or speak to the Deputy Principal or any staff of the school on 28 June 2017 and she was not informed by the school at all about the suspension letter. VW also set out allegations about the staff in the witness statement.

Applicant’s documents

The applicant’s submissions (Exhibit A1) contained the following documents:
(a)XY’s statement dated 5 April 2018.
(b)Email from the occupational therapist dated 29 May 2016.
(c)Letter from the primary school psychologist to Dr Rosier dated 16 May 2016.
(d)Emails from XY and the occupational therapist between 1 February 2016 and 4 February 2016.
(e)Email from XY to the occupational therapist and others dated 5 March 2016.
(f)Email from the occupational therapist to XY, VW, teachers and another dated 17 February 2015; email from the occupational therapist to XY, VW and others dated 22 February 2016 and undated email from XY.
(g)Email from ZZ’s class teacher to XY, VW, the occupational therapist and others dated 1 September 2016 and email from the primary school psychologist to ZZ’s class teacher dated 3 September 2016.
(h)Emails between XY and the primary school Principal between 5 March 2016 and 8 March 2016.
(i)Records of outgoing calls on XY’s mobile phone 24 June 2017 and 2 July 2017 and VW’s mobile phone 27 June 2017 and 30 June 2017.
(j)Email from Catherine Ellis, Office for Schools, Education Directorate to the Principal and Deputy Principal of the primary school dated 16 August 2017 and email from Deputy Principal to Catherine Ellis dated 16 August 2017.
(k)Email from VW to the primary school Principal dated 15 February 2018 and reply email from the primary school Principal.
(l)Letter from Ms Kate Smith, Director School Improvement to XY dated 4 September 2017.
(m)Occupational therapy report for ZZ dated 2 December 2013.
(n)“Autism Spectrum Australia Building Blocks – Early Intervention Environmental Checklist – School” given to ZZ’s class teacher on 17 December 2015.
(o)Copy of documents submitted to the tribunal – additional information for reasons for applying for review, respondent’s decision letter dated 19 September 2017, Copy of ‘Suspension, Exclusion or transfer of Students in ACT Public Schools Policy 2010’, copy of XY’s appeal letter dated 3 August 2017 to the respondent and copy of ZZ’s suspension letter dated 28 June 2017.
(p)Witness statements of XY dated 8 April 2018 and VW dated 31 March 2018.

Respondent’s Evidence
Kate Smith

Ms Smith told the Tribunal that she was the internal reviewer for XY’s application seeking the review of the decision to suspend ZZ.
Upon receipt of XY’s appeal she had invited the primary school Principal to nominate the staff with the most knowledge of the incident and the decision to suspend ZZ and arranged for them to be interviewed on the school grounds on 24 August 2017 by Mr Yehuwidy Dillon, School Improvement Assistant Manager – North. Mr Dillon was accompanied by Ms Ana Glavinic, School Improvement Senior Officer – North. Mr Dillon interviewed the primary school Principal and the Deputy-Principal and prepared a written report for Ms Smith.
Ms Smith looked at this report and contacted the Principal by telephone to clarify the presence of individual learning plans (ILP) in the school and the time the Deputy Principal contacted VW on 28 June 2017 to reaffirm the connections. Ms Smith had the information the primary school had sent to the respondent and a copy of the suspension forms.
Ms Smith told the Tribunal that children in the Learning Support Unit (LSU) have an IQ less than 70 and children in the Learning Support Centre (LSC) have an IQ hovering around 70 but they also have the ability for mainstream integration. She said the level of severity of the disability and the level of supports and needs determined whether a child was placed in LSU or LSC. ZZ had been placed in the LSU.
Ms Smith said in her evidence that the information provided to her showed ZZ “was a little fellow living with autism”. She understood that a wide range of children are affected by autism and that it presents differently between children. She understood people with autism have difficulties with social interaction. She was looking at the level of impact of ZZ’s disability when reviewing the original decision.
She said she concentrated on the week in which the suspension occurred when reviewing the original decision. She received information that ZZ’s behaviour had escalated across the week commencing 26 June 2017. He had attended the primary school on 26 June 2017 and on 28 June 2017. He did not attend school on 27 June 2017. When ZZ was suspended on 28 June 2017 he had assaulted seven children on the two days he attended school, three violently on the day of the incident. He attempted to scratch the eyes of staff and students that day. The behaviour of the other three students in LCU, who also have autism, was impacted. Their behaviour was heightened by the presence of ZZ in the class room and was escalating. ZZ’s behaviour on 28 June 2017 was described as “severe round house punches several times to the heads of the children.” [15] There was concern for the safety of the other children.
[15] A punch to the head made by swinging the arm in an arc rather than by a jabbing punch
When balancing perspectives Ms Smith said she noted that ZZ’s behaviour had escalated during the two days he was at school in the week commencing 26 June 2017. Against this background she was reviewing whether the suspension for 1.5 days was a suitable outcome for this incident.
When asked if, in her experience, it was common for children to be formally suspended she said that different schools have different challenges in their schools. She was surprised the suspension was for 1.5 days as, in a situation like this where children are physically harmed by physical blows to the head, it would be very reasonable for the Principal to suspend a student for five or more days.
Ms Smith said that the purpose of suspension was to enable a ‘reset’ to the situation, to give the scene in the class room time to pause on a situation, to engage the NSET, time for the staff to sit down and look at the documents and procedures if a Learning Support Aide (LSA) was involved and to rebuild the relationship with the parents, teachers and school. Some of this can be very difficult to align for the very next day. It can take some days to be able to reset the situation, take hold of the environment and be able to put proactive measures in place or simply work with the children so they are having a little bit of respite and a little bit of calmness to their day so that the teachers can rehearse with them, again, appropriate ways to try and manage themselves in that class room situation.

Ms Smith said, in this situation, there was the added complexity that the other three students in this unit have autism so the teachers need definite space and time to work with and reset those children so ZZ could be welcomed back to the class room. To do this the primary school would be wanting to work with the students individually and in pairs, subject to the teacher’s knowledge of the individual children, so they are not fearful of ZZ.
Although there was a previously mutual arrangement with ZZ’s parents that ZZ would be collected early if ZZ’s behaviour was challenging, this time the primary school really saw ZZ’s physical aggression to ZZ’s class mates as the very last straw. ZZ’s behaviour had been regular and on 28 June 2017 was at the extreme level. There were students clearly damaged and not able to operate in a manner that was helpful to themselves and their own learning.
Ms Smith said that there was no discussion of ZZ’s actions being deliberate. That was not suggested. However, the incident happened. ZZ had been violent to other students and interrupted their learning.
Ms Smith said she felt confident, from reading Mr Dillon’s record of the interview and her conversation with the Principal, that VW was the parent who usually collected ZZ and that the Deputy Principal had contacted VW on 28 June 2017, told VW of the serious nature of the incident and the need to suspend ZZ formally and that the paperwork would be left at the front office to be picked up which was a very easy arrangements for parents. She said she was fully confident that the phone call had been made to VW and VW was coming to pick ZZ up.
In relation to the purpose of the suspension Ms Smith emphatically said that it is never considered a punishment. While that might have been the thinking decades ago, now its purpose was to reset, recalibrate, rebuild the student and the other students and give time, which she described as “our most precious resource”.
In cross examination XY asked Ms Smith how section 36 of the Education Act was applied when, as in this matter, the student was a young child. Ms Smith told the Tribunal that section 36 was pertinent to any age group and, adopting a balanced approach, section 36 guides the respondent to what is appropriate and what is not appropriate.
When XY put to Ms Smith that, notwithstanding her evidence that a suspension was not punishment for the student, in ZZ’s case the suspension was punishment to ZZ’s family, Ms Smith said she could empathise with XY but reiterated that a suspension is in no way intended to be a punishment.
When asked by XY if suspension was the best course of action for ZZ Ms Smith said “on this occasion I believe the suspension, given the behaviour that ZZ had displayed and the harm that ZZ had caused the other children and staff, was the best decision to be made on that day in order to create some time to help reset and repair the other children which obviously takes a lot longer. They had the day to be able to start that process. There were children very hurt in this process.” She referred to the severity of ZZ’s closed fist round house punches describing them as “full on punches” and to ZZ’s “severe aggression”.
Ms Smith also said that ZZ’s actions on 28 June 2017 were not considered to be deliberate or malicious; reiterating that “they just happened”. She had information that ZZ had been unwell and that sometimes that triggers ZZ’s behaviour.
In her experience, teachers are teachers because they love children. It is important to create a safe place for teachers, LSAs and children in the classroom. She observed that teachers can talk with other teachers in the staff room about particular incidents, for example, a student scratching the teacher’s eyes, or hitting the teacher, and this can elevate the general sense of unsafety across the school. The Principal has an absolute moral obligation to put processes in place so that members of staff know that that behaviour in school is absolutely not accepted and the school is doing something to repair the harm.
XY told Ms Smith XY had collected ZZ from the primary school on 28 June 2017 and asked her why the suspension letter was not handed to XY. Ms Smith said that the arrangement the primary school had made was for VW to collect the letter before VW collected ZZ. When Ms Smith pursued this enquiry with the primary school she was told that the parent who had collected ZZ had not signed the sign out book on 28 June 2017.
When XY asked why the respondent had carried out the review when the appeal period of 28 days from the date of the suspension had already lapsed Ms Smith said that the respondent always works with families, in the best interest of the students, to repair and move on.
Ms Smith said it was not a question of a right or wrong situation in determining the appeal from the original decision. She explained the internal appeal process as XY presenting XY’s perspective as thoroughly, expansively and in as much detail as XY can in the appeal document and for the reviewer to respond to that by contextualising and balancing perspectives. She did that by considering XY’s appeal, the information in the interview notes with the Principal and Deputy Principal, her discussion with the Principal, the occupational therapist’s program of work for ZZ, the risk assessment that had been made and ZZ’s Individual Learning Plan.
As well Ms Smith said she considered section 36 of the Education Act, the Suspension, Exclusion or Transfer of Students in ACT Public Schools Policy[16], ZZ’s needs and whether the school had had regard to XX’s development delay prior to, and on the day of, the suspension[17] and that the school had previously consulted with caregivers in relation to prior incidents of misbehavior to the extent that until 28 June 2017 the school had been able to avoid taking formal action to suspend ZZ. She also said that she took into consideration that, for an extended period of time, the school had engaged the Directorate’s NSET, XY and VW and external experts to support ZZ’s education.[18]
[16] Subsection 2.2, Tribunal (T) Document -T4 [19]
[17] T7 at [24]
[18] T8 at [e].
This information included the modifications to daily programs that were equitable for the students in the LSU, what ZZ did at the primary school in the specialist unit and ZZ’s participation in other school activities such as the athletics carnival, library and the walkathon.
The information also included areas of specific training by the staff for ZZ’s learning, bringing in the NSET team with its variety of expertise and how the LSAs had been specifically targeted as people with a particular skills-set and were very reactive given ZZ’s agility and impulsivity. This gave her ‘real on the ground examples of the inclusive nature of the primary school’. She observed that the parents of the mainstream classes were very accepting of children with additional needs in their primary school and that VW and the primary school had had a very amicable relationship before ZZ’s suspension.

Deputy-Principal’s evidence

In the witness statement (Exhibit R1) the Deputy Principal said that ZZ’s targeted programs supported academic and social growth and detailed the Introduction of Supports and the Implementation of Supports to facilitate ZZ’s engagement at the primary school. The supports included:
(a)Placement in a special education classroom, which was smaller than the mainstream classes and had only four children (including ZZ).
(b)1:1 adult support at all times during the school day, which meant that either a teacher or a LSA would be with ZZ at any point in time in the day.
(c)Access to a range of support professionals, including a speech pathologist, and therapist, occupational therapists, the NSET team, Disability Education Partners and School Inclusion Officers.
ZZ attended classes at the primary school with a highly modified and differentiated learning environment. The Deputy Principal said that the:
8.     Modifications were primarily expressed through or supported by:
a.Individual Learning Plan SMART goals;
b.     Structured teaching through the TEACCH Method;
c.     multi-disciplinary intervention; and
d.     A Positive Behaviour Support Plan.[19]
[19] A copy of which was annexed to the witness statement
The Deputy Principal further stated that:
the school worked hard to balance its relationship with [ZZ]’s family and [ZZ]’s needs with other students who were often distressed if [ZZ] displayed high-level behaviour over an extended period of time. I am also aware that at least six staff members (both teachers and LSAs) who were working in LSUA with [ZZ], either left the unit or moved to other positions as a direct result of the distress caused to them by working with [ZZ].[20]
[20] Exhibit R1 at [13] and [14]
In relation to the events leading up to 28 June 2017 the Deputy Principal stated:
19. In the week leading up to the suspension [ZZ] had become increasingly violent to [ZZ]’s classmates and teachers.
20. On 26 June 2017 a number of incidents occurred. On this day [ZZ] had hit each of [ZZ]’s classmates many times and was repeatedly hitting h--self. Both the classroom teacher and the LSAs were working with [ZZ] ‘two on one’ for the majority of this day and the following days.

21. From 26 June 2017 to 28 June 2017 classroom teachers from both LSUAs spent increasing time calming down children or other teachers who had been hit by [ZZ]. A number of classroom teachers, some of whom were experienced at working in the LSUA context, expressed concern on a daily basis about how to keep [ZZ] at school whilst ensuring the safety of [ZZ]’s peers.
…
23. Because of the frequency of [ZZ]’s behaviours, and the stress caused by dealing with that behaviour, I had daily post-school debriefs in my office for staff during which they expressed concerns to me about how to deal with the escalating situation.

In relation to the events on 28 June 2017 the Deputy Principal stated:
24. On 28 June 2017, I was approached by [ZZ]’s classroom teacher [name] at about noon. [Teacher’s name] told me that [teacher] was concerned for the wellbeing of the other students and support staff due to [ZZ]’s behaviour. [Teacher] asked the music teacher to remain in [teacher]’s classroom and came to my office and said words to the effect of “[Deputy Principal] it’s very bad today, [ZZ] is hitting everyone and they’re getting hurt. I think [ZZ] needs to go.”
25. I understand [teacher] to be saying [ZZ]’s high-level behaviour had escalated that [ZZ]’s peers had been hurt by [ZZ]’s behaviour and that for the sake of [ZZ]’s wellbeing, and that of [ZZ]’s classroom peers, [ZZ] needed to be sent home and kept away from the school for a period of time to allow [ZZ] some space to regulate [ZZ]’s behaviour, to give [ZZ]’s peers some respite from being hit, and to allow the school to take stock of the situation and what steps it could take to manage [ZZ]’s behaviour when [ZZ] returned to the school.

26. After speaking to [teacher] I looked in to [ZZ]’s classroom and observed that the other children in the classroom appeared to be highly distressed and anxious to avoid any contact with [ZZ].

27. For those reasons, I decided to issue [ZZ] with a one-and-a-half day suspension. I recall that on that day [ZZ] had arrived at school considerably dysregulated and was very difficult to handle in the classroom space. [ZZ] would dart past the adults in the room and target the heads of the other students in the classroom – hitting them very hard with [ZZ]’s hand. [ZZ] had become increasingly physically violent during that day.

In relation to the Deputy Principal speaking with ZZ on 28 June 2017, the Deputy Principal stated:
28. After speaking with [teacher] in the classroom I spoke with [ZZ]. I went to [ZZ] and asked [ZZ] to stop shouting as [ZZ] was giving me a headache. This usually had the result of [ZZ] stopping for a short time. When [ZZ] was quieter, I told [ZZ] that hitting was not ok and because [ZZ] had hurt people [ZZ] needed to go home and that [ZZ] would not be able to come back tomorrow because [ZZ]’s friends needed a break so that when [ZZ] came back they would not be scared and [ZZ] could be with [ZZ]’s friends again. I told [ZZ] I would see [ZZ] when [ZZ] came back in. Because [ZZ] is primarily non-verbal and received a modified curriculum, and because of the heightened state [ZZ] was in on that day, I did not attempt to give [ZZ] any work to take home while [ZZ] was suspended.
In relation to the telephone call on 28 June 2017 the Deputy Principal stated:
29.     In the early afternoon of 28 June 2017 I telephoned [ZZ]’s mother, [VW], and asked her to collect [ZZ] because of [ZZ]’s heightened behaviour. During my conversation with VW I said words to the effect of “this time I have to make it formal and you’ll have to have [ZZ] home tomorrow”. I told [VW] that [ZZ] had been hurting [ZZ]’s classmates and let [VW] know that it was repeated harm and we were not able to keep [ZZ] or [ZZ’s] peers safe and comfortable due to [ZZ]’s extreme unhappiness and unsettledness. I let [VW] know that unfortunately, I would need to make this a formal suspension because we needed time to reset the classmates and to make plans for everyone’s success.
30.     I let [VW] know that I would have all the paperwork at the front counter with the school secretary [name]. I recall [VW] apologising (which I said was unnecessary) and I believe that [VW] understood that the letter was to be collected from the front counter as [VW] often drops [ZZ] off at school and knows all the front office staff well. I also advised [VW] that the paperwork in relation to the suspension would be available for [VW] to collect at the front office.
…
35.    … It was very unusual for anyone other than but [VW] to collect [ZZ] because [VW] is a stay at home mum and during the day [VW] has responsibility for [ZZ]’s younger [sibling]. I would say that on 98% of occasions during the day, the person collecting [ZZ] is [ZZ]’s mother Therefore, my phone call to [VW] was the best option for getting [ZZ] collected.
In relation to the correspondence about ZZ’s suspension the Deputy Principal stated:
31. I prepared the necessary paperwork in accordance with Directorate guidelines (which require a letter to parent, appeal information, a copy of the MAZE printout with suspension details).
32. After preparing the paperwork I provided it to the front office, ready for collection. I advised the school secretary [name] that [VW] would be collecting it when [VW] arrived to collect [ZZ]. The letter to [XY] and [VW] invited them to attend a re-entry meeting on 30 June 2017 to discuss [ZZ]’s re-entry to school following the suspension. I then sent a copy to the Office for Schools.
…
39. On around 17 July 2017, which was the first day of term, I became aware that the suspension letter had not been collected by [XY] or [VW] and remained at the front office. I had previously had no reason to check the front counter and for that reason I did not become aware that the letter had not been sent until that date.
40. Given that the suspension letter had not been collected I asked the school secretary to post it to [ZZ]’s parents. I didn’t make a call because I assumed all along they had known about the suspension. I had no reason to believe otherwise, even though the letter had not been collected, this quite often happens and I had discussed the suspension on the phone with [VW].

Issue

The issue for the Tribunal is whether, on the material before the Tribunal, the actual decision under review is the correct or preferable decision.

Consideration

XY seeks review, pursuant to section 145A of the Education Act, of the respondent’s decision dated 19 September 2017 upholding the original decision to suspend ZZ for one-and-a-half-days commencing 28 June 2017. The respondent’s decision is a reviewable decision under section 140 of the Education Act.
Administrative review of a decision is conducted as a review of the merits of the decision, not the reasons for the decision under review.
Section 68 of the ACAT Act provides that the Tribunal may exercise any function given to the entity by, in this case, the Education Act for making the decision. The Tribunal must have regard to the terms of the Education Act. The main objects of that Act are set out in section 8. One of the main objects of the Education Act is “to state the circumstances in which school attendance is not required, including providing for suspension and exclusion from school.”
The circumstances in which the power to exercise the discretion to suspend a student may be engaged are set out in section 36(1) of the Education Act.
There is no dispute and the Tribunal finds that ZZ was attending a government school from 2015. Section 36(1)(a) of the Education Act is met.
The evidence of the Deputy Principal in Exhibit R1 of ZZ’s behaviour leading up to and on 28 June 2017 and set out in [103] and [104] above was not challenged.
Ms Smith stated in her ‘Statement of Reasons’ (Exhibit R3):
9. In the week of the suspension, [ZZ] had become increasingly violent and had on a number of occasion struck classmates in the face, back, legs and elsewhere. The impact of these behaviours was observed and considered by [the primary school] in deciding to issue the suspension on 28 June 2017. The Deputy Principal described the students’ reactions to [ZZ]’s behaviour to Mr Dillon during the Suspension Appeal Interview. The students’ reactions included screaming, hiding and running away. I also understand that teachers were struck when they moved between [ZZ] and [ZZ]’s peers to protect them.

-…
19. The Principal and Deputy Principal had also shared that the students in the class were displaying significant signs of distress when [ZZ] entered or was present in the classroom and this was noted during the Suspension Appeal Interview as follows:
[ZZ]’s behaviour had started to trigger a strong response from other students, and they were screaming and crying when [ZZ] entered the classroom.
…

21. The school leaders described behaviour demonstrated by [ZZ] that:
a. was persistently and wilfully noncompliant;
b. involved threats of violence (physical intimidation);
c. involved multiple acts of violence to another student attending the school;
d. involved acts of violence by [ZZ] to [the primary school] staff;
e. threatened the good order of the school;
f. threatened the safety or wellbeing of another student;
g. threatened the safety or wellbeing of a member of staff at the school; and
h. was disruptive to the student’s learning and that of other students.

Having considered the evidence the Tribunal is satisfied and finds that on 28 June 2017 ZZ had threatened to be violent and had been violent to another student attending the primary school or a member of staff at that school, that ZZ acted in a way that threatened the good order of the school or the safety or wellbeing of another student attending the school or a member of staff and that ZZ displayed behaviour that was disruptive to the student’s learning or that of other students.. Subsection 36(1), paragraphs (ii), (iii) and (iv) of the Education Act were met.
The Tribunal will now consider XY’s allegations in the following order:
(a)That the correct procedure was not followed when ZZ was suspended.
(b)That XY was not afforded procedural fairness.
(c)That the decision to suspend ZZ was in violation of section 7(2)(b)(v) of the Education Act and contrary to the underlining principles of the Education Act and relevant Policy.
(d)That the decision under review was biased in favour of the primary school.
(e)The reviewable decision maker’s decision may not be fair and transparent in violation of the principles of the ACT Public Sector Management Act 1994.

Was the correct procedure followed in issuing the suspension?

The Tribunal has considered the Explanatory Statement for the Education Bill 2003 in relation to the powers in section 36 of the Education Act. Relevantly it states[21]:
The powers are intended to ensure that all government schools maintain an environment that supports effective teaching and learning free from disruption, violence and threats of violence and that individual students comply with reasonable requirements regarding their behaviour, necessary for their education, safety and well being and that of other students.
The processes are required to include measures to protect the rights of the child who is subject to a suspension, exclusion or transfer as well as the child’s parents.
[21] Index to respondent’s authorities at A4, Attachment C , at page 15

Subsection 36(5) of the Education Act sets out the procedural requirements, or preconditions, which must be met before a student may be suspended.
Subsection 36(5)(a) requires that the student’s parents have been given an opportunity to be consulted, and told in writing, about the proposed suspension of the student and the reasons for it.
The evidence from the Deputy Principal in relation to complying with subsection 36(5)(a) is set out in [106] above.
XY disputed the Deputy Principal’s version of these events. Both XY and VW gave evidence under affirmation in which they each denied that VW had been contacted by the Deputy Principal by telephone on 28 June 2017. In VW’s witness statement dated 31 March 2018 VW said:
1. I did not receive call from or speak with [Deputy Principal] of [School] or any staff of the school on 28^th June 2017, the day [ZZ] was suspended.
2. I was not informed by the school at all about the suspension letter of [ZZ]. The letter was handed over by the reception staff of the school in the beginning of the third term of the school.
XY had also filed a witness statement dated 8 April 2018 which stated:
1.    I spoke with the school around lunch time on 28^th June 2017, the day [ZZ] was suspended. I was informed by the school to pick up [ZZ] from school.
2.    I picked up [ZZ] from the school. The school teacher advised me that the Deputy Principal wanted us to pick up [ZZ] as [ZZ] had hit several students.
3.    …
Both XY and VW gave evidence under affirmation which, in essence, restated the statements in their witness statements.
The Tribunal has carefully considered the oral and documentary evidence and the documents in XY’s submission (Exhibit R1) in determining this factual dispute. In XY’s document entitled ‘Additional Information for REASONS FOR APPLYING FOR REVIEW’[22] XY stated:
The first call we received from the school was around midday on 28 June 2017, when we were asked to pick up [ZZ] as [ZZ] had hit several children.
As [VW] ([ZZ]’s mother) was stressed to hear about the incident, I went to the school to pick [ZZ] up and I was informed by [ZZ’s class teacher] that the deputy principal wanted us to take ZZ home due to [ZZ’s] bad behaviour. [Deputy Principal] did not inform me anything about the suspension or proposed suspension.
[22] Exhibit A1 at page 67
This statement does not state that XY was contacted by the school; it states that “the first call we received” … “when we were asked to pick ZZ up” and “[VW] was stressed to hear about the incident” so XY “went to school to pick ZZ up”. This statement does not support XY’s version of the telephone contact from the Deputy Principal. This statement supports the Deputy Principal’s evidence that the Deputy Principal had spoken to VW and VW had apologized to the Deputy Principal in that telephone call. The record of outgoing telephone calls provided by XY did not assist the Tribunal determine whether XY or VW had received the incoming call from the Deputy Principal in the early afternoon on 28 June 2017.
The Tribunal noted that VW noticeably faltered in giving her evidence in relation to the events during the week commencing 26 June 2017. The Tribunal found VW’s evidence unreliable and is unable to place any weight on it.
The Tribunal could not be confident that XY’s version of the disputed facts in his oral evidence was correct. As stated in [126] above, the Tribunal finds that XY’s statement (in [125] above) supports the Deputy Principal’s evidence. XY said that the Deputy Principal telephoned him late on 28 June 2017 and submitted that the Deputy Principal would not have done that if the Deputy Principal had spoken with VW earlier that day.
The Tribunal is satisfied that the Deputy Principal did not know who had collected ZZ because the sign out book at reception had not been signed. The Tribunal finds, in these circumstances, that it was reasonable for the Deputy Principal to call both of ZZ’s parents on 28 June 2017, and that that was what happened. The Tribunal does not accept XY’s submission that the fact that the Deputy Principal had spoken with him later on 28 June 2017 proves that the Deputy Principal did not speak with VW earlier that day.
Ms Smith provided comprehensive and credible evidence to the Tribunal as to the steps she had taken to collect the evidence which led to the decision to suspend ZZ on 28 June 2017.
Ms Catherine Ellis, Acting Executive Officer for the Office for Schools for the respondent, had written to the primary school’s Principal and Deputy Principal upon receipt of XY’s appeal from the original decision seeking clarification of how and when the paperwork was provided to ZZ’s parents and if there was a record of this being sent. The Deputy Principal emailed her reply to Ms Ellis on the same day, 16 August 2017[23], in which she described ZZ’s behaviour to ZZ’s class mates and staff in the week ZZ was suspended, the Deputy Principal speaking with VW, telling VW the Deputy Principal would need to make the suspension formal to give ZZ’s peers some time to recover and that the suspension documentation would be at the front office for VW to collect when she picked ZZ up.
[23] T Documents at pages 84-85
The respondent had arranged for Mr Dillon to meet with the Deputy Principal and the Principal and he provided Ms Smith with detailed notes of these interviews. She had, herself, also spoken with the Principal to clarify some matters in the interview notes.
Ms Smith stated that she felt fully confident that the Deputy Principal had contacted VW on 28 June 2017 and had the conversation with VW referred to in [106] above and that VW was coming to pick ZZ up. She also noted that the primary school had sent a copy of the school suspension report to the School Network Leaders (SNL) at the Office for Schools on 28 June 2017. The Tribunal found Ms Smith was an impressive witness.
The Tribunal finds, having considered all of the evidence and the submissions, that it prefers the evidence of Ms Smith and the Deputy Principal in relation to the Deputy Principal’s telephone conversation with VW on 28 June 2017.
This would have been a distressing telephone call for VW. XY stated that VW “was stressed to hear about the incident” and the Deputy Principal stated that VW apologized when she heard of ZZ’s behaviour that day and why the primary school was considering suspending ZZ. This would explain why XY collected ZZ that afternoon. It could also explain why XY was not aware that the school had informed VW of the letter at the school office for collection and, as it was usually VW who collected ZZ, why XY did not know to sign ZZ out.
For the above reasons the Tribunal is satisfied and finds that the procedural requirements in section 36(5) of the Education Act conditioning the exercise of the discretion to suspend were met as:
(a)VW had been contacted about the suspension on 28 June 2017;
(b)the details of the allegations relating to the incident were provided in that telephone call as well as the Deputy Principal’s proposal to issue the suspension;
(c)the Deputy Principal informed VW that a letter relating to this course of action would be available at reception for VW to collect immediately prior to collecting ZZ;
(d)the letter was written to XY and VW and placed at reception for collection by VW on 28 June 2017;
(e)in relation to ZZ’s maturity and capacity for understanding, the Deputy Principal took this into consideration when discussing the suspension with ZZ and explaining it in a language and a way that ZZ could understand; and
(f)the Deputy Principal determined, reasonably, given the modified curriculum ZZ was engaged in at school, it would have been unreasonable to require ZZ to continue [ZZ]’s education during the suspension.
The Tribunal further notes that pursuant to subsection 36(6) of the Education Act the director-general may immediately suspend a student for not longer than 5 days if, in the director-general’s opinion, the circumstances are of such urgency or seriousness to require the child’s immediate suspension. If exercising the discretion in subsection 36(6) the director-general must comply with the requirements of subsection 36(5)(a) to (d) to the extent that it is practicable and appropriate to do so. The Tribunal has already found that these requirements were met in this matter.
Finally, the Tribunal notes that under subsection 36(8) of the Education Act, to remove any doubt the director-general may suspend the student under subsection 36(6) while deciding what further action (if any) should be taken in relation to the student under this section.

XY was not afforded procedural fairness

It appeared to the Tribunal that XY was alleging denial of procedural fairness as XY was not allowed to speak for ZZ before the original decision was made and as XY was not contacted by the internal reviewer in relation to the disputed facts before she confirmed the original decision. Representation of a child by a parent is not a necessary requirement of natural justice[24].
[24] Suspension, Exclusion or Transfer of Students in ACT Public Schools Policy
The Deputy Principal explained that VW had been telephoned on 28 June 2017 because on 98% of occasions during the day[25] VW was the parent who collected ZZ from school. The Tribunal finds that the Deputy Principal involved VW, as ZZ’s parent at the earliest opportunity on 28 June 2017. The Tribunal finds that VW had an opportunity in that telephone call to respond to what the Deputy Principal had told her and that her response took the form of an apology. The Tribunal noted, in this regard, that the Deputy Principal stated in the email to Catherine Ellis at the Office for Schools dated 16 August 2017:
I always think that [VW] has absolutely understood everything I say to [VW] but there are times when the message seems to be different when [XY] hears it.[26]
[25] Exhibit R1, at [35]
[26] T Documents at page 84
The Tribunal has already found in [136] above, that the original decision maker met the procedural requirements set out in section 36(5) of the Education Act.
The internal reviewer had XY’s application to appeal before her. The Tribunal is satisfied, having heard and considered her evidence, that she took XY’s submissions into account. The fact that her decision did not set aside the original decision, which was what XY had hoped for, does not mean that XY was not afforded procedural fairness during the internal review.
In making her decision the internal reviewer also referred to section 36 of the Education Act, information provided by the primary school’s leaders during the Suspension Appeal Interview conducted by Mr Dillon on 24 August 2017 including the engagement of the Directorate’s NSET and subsection 2.1 of the Policy with specific regard to:
·        restoring safe working environment;
·        the school having time to review its practices and establish and review support plans for the student;
·        communicating the significance of the behaviour to parents and student, including responsibility for actions.[27]
[27] T Documents at page 4
An administrative decision maker is usually entitled to inform themselves on any matter they think appropriate. In Minister for Immigration and Citizenship v Applicant A125 of 2003[28] (MIC & A125) the Full Court of the Federal Court of Australia, considering an appeal from the Federal Magistrates Court of Australia quashing the decision of the Refugee Review Tribunal (RRT), said at [95]:
… the weight to be accorded to the applicant’s evidence was a matter for the RRT.
[28] [2007] FCAFC 162, at [95]
The above passage in MIC & A125 has been cited in numerous cases including MZAAV v Minister for Immigration and Anor[29] where Judge Jones said:
The weight the Tribunal gave this information was a matter for the Tribunal and not this Court, unless the decision was manifestly unreasonable.
[29] [2014] FCCA 2805 at [48]
The Tribunal is not satisfied, having considered all of the evidence and the submissions, that it was manifestly unreasonable for the internal reviewer, being an administrative decision maker, to prefer the evidence of the school to that of XY. The internal reviewer was entitled to give such weight to the evidence before her as she thought reasonable in all the circumstances. The Tribunal is satisfied that this is what she did in this matter.
For these reasons, the Tribunal finds there is no merit in XY’s allegations that XY was not afforded procedural fairness. This argument must fail.

The decision to suspend ZZ was in violation of section 7(2)(b)(v) of the Education Act and contrary to the underlining principles of the Education Act and relevant Policy

Section 7(2)(b)(v) of the Education Act sets out the following principle, being one of the principles on which a high-quality education is based:
…
(v)recognise the social, religious, physical, intellectual and emotional needs of all students;
(vi)…
The relevant sections of Suspension, Exclusion or Transfer of Students in ACT Public Schools Policy relied on by XY state:
4.       PROCEDURES
…
4.2    Parents must be consulted in the process of the proposed suspension, transfer or exclusion of a student and informed in writing of the reasons for the proposed action.
…
4.6    In making the decision to suspend, the Director-General or principal must take into account the individual circumstances of the student including their development capacity.
5.       Suspension for up to 15 days
…
5.2    A copy of the suspension record, suspension letter and appeal guide must be forwarded to the student and the parent/s within 24 hours of informing the parent/s.
Whilst a Tribunal is not bound to apply the administrative policies which may have guided the original decision maker’s decision, as stated above, it is “entitled to treat government policy as a relevant factor in the determination of an application for review of that decision”.[30] However, the Tribunal is still required to make an independent assessment and independent determination of whether the decision was the correct or preferable one.
[30] Drake Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 per Bowen CJ and Deane J at page 69
The Tribunal has already dealt with, above, those matters which are covered by the procedures in 4.2, 4.6 and 5.2 of the Policy and refers to those findings.
While XY did not expand on his allegation in relation to section 7(2)(b)(v) of the Education Act in his evidence or submissions, XY told the Tribunal that the suspension decision was not only unfair, it was completely against the intention of the Education Act, which says Education is mandatory until year 12. The Education Act is applicable to school going children ranging from pre-school year to 12 year, government and non-government schools and children with varying levels of needs and capabilities.
XY variously put to the Tribunal that, given ZZ had been diagnosed with autism spectrum disorder and been known to display significant disruptive behaviours, ZZ’s needs, be they social, physical, intellectual and/or emotional, had not been met by the primary school deciding to suspend ZZ.
XY submitted the suspension decision was highly unlikely to achieve a positive outcome. ZZ had been at the primary school for approximately three years and the primary school has consistently shown negligence and incompetence in managing ZZ’s situation; which acted as a catalyst for ZZ’s bad behaviours and that the primary school did not take appropriate measures to control ZZ’s well-known conditions. XY also stated
29. Overall, it is evident that the school did not make any efforts on the ground level to meet [ZZ]’s needs and they neglected [ZZ’s] needs and showed high level incompetence in dealing with situations. In the end, they suspended [ZZ] to cover their negligence and incompetence.[31]
[31] Exhibit A1
However, this statement is difficult to reconcile with the following statement by XY in his appeal against the suspension decision:
The school has been quite supportive in extending all possible supports for ZZ including hiring extra staff to provide [ZZ] one-to-one support. We have been supporting the school in terms of taking ZZ home promptly, when asked to do so. We understand that it is taxing for staff members and [ZZ]’s class mates due to [ZZ]’s bad behaviours[32].
[32] T79
The Tribunal has carefully considered the evidence and the submissions. It appears that XY is asking the Tribunal to undertake a collateral review of the school’s process, while conducting an administrative review of the internal reviewer’s decision. The administrative review cannot encompass a claim in negligence. A negligence claim is a separate cause of action.
The Tribunal agrees with the respondent’s submissions[33] that it appears:
XY seeks to ventilate issues relating to the primary school’s historical response to suggestions relating to the introduction of supports for ZZ’ and ‘such an examination would take the ACAT outside the limits of its task on review and would lead to the ACAT to determine issues relating to the school’s management of resources in relation to a particular student. Such an investigation would require the ACAT to undertake a collateral review of the school’s process that would be beyond the jurisdiction of the ACAT to consider and is contrary to the Purpose of the ACAT as a forum of speedy and inexpensive resolution.”[34]
[33] Exhibit R2 at [25]
[34] Section 7 of the ACT Civil and Administrative Tribunal Act 2008
In Director of Housing v Sudi[35] the Victorian Court of Appeal decided that, where the Director of Housing applies to the Victorian Civil and Administrative Tribunal for possession of public housing, the Tribunal has no power to examine whether the Director’s administrative decision to make the application complies with the Charter of Rights and Responsibilities Act 2006 (‘Charter’). Chief Justice Warren said:
[T]he VCAT Act sets up VCAT as a forum for speedy and inexpensive resolution of specific kinds of disputes. The RTA confers jurisdiction on VCAT to hear applications under that Act. In doing so, the RTA is implementing its stated purpose of providing ‘for the inexpensive and quick resolution of disputes under [the] Act’. A power to undertake collateral review would be wholly inconsistent with this purpose.[36]
[35] [2011] VSCA 266
[36] [2011] VSCA 266 at [34] per Warren CJ
Chief Justice Warren’s comments equally apply to this tribunal.
For these reasons the Tribunal finds that it is beyond its jurisdiction in the present matter to undertake a collateral review of the school’s process about which XY complains.

The decision under review was biased in favour of the primary school

The reviewable decision upheld the original decision made by the Deputy Principal on 28 June 2017. In doing so, the applicant alleges that the reviewable decision maker demonstrated bias in favour of the school.
The Tribunal has already found that Ms Smith was a credible witness. The Tribunal was readily satisfied, from her evidence, that she considered all of the requirements imposed by the statutory scheme and Policy and was satisfied that they had been met when coming to her decision, as the internal reviewer, to confirm the original decision. The Tribunal is satisfied and finds that it was open to Ms Smith on the evidence she collected while conducting her review to come to her conclusion that the correct or preferable decision was to confirm the original decision.
There was simply no evidence before the Tribunal which could establish Ms Smith had a predisposition or a closed mind when reviewing the original decision. The reality was that Ms Smith conducted a thorough investigation which, in itself, showed that she brought an open mind to the investigation.
XY did not provide any evidence to support XY’s allegation that the reviewable decision was a ‘cover up for the school’s inactions.’ The Tribunal finds that this allegation is without merit. It is dismissed.

The reviewable decision maker’s decision may not be fair and transparent in violation of the principles of the ACT Public Sector Management Act 1994

XY did not pursue this allegation at the hearing. Without supporting evidence it is an allegation and not a fact. Accordingly, the Tribunal finds that this allegation is without merit. It is dismissed.

Other matters

It was readily apparent to the Tribunal that XY and VW were distressed by the decision to suspend ZZ. XY said “the suspension was quite a big thing, not just for [ZZ] but it impacted us quite a bit.” XY also said “While we cannot look at the suspension as a punishment, what about the family and in our society. For us to say [ZZ] was suspended is a punishment for us.”
However, a suspension is not one dimensional. A reviewable decision maker cannot take into consideration the feelings, such as those XY expressed at the hearing. It was apparent from Ms Smith’s evidence and the Deputy Principal’s witness statement that ZZ’s conduct on 28 June 2017 had caused harm to other students and interrupted their learning. Ms Smith expressed her surprise, given ZZ’s heightened behaviour and the harm caused to the other students that day, that the suspension was not for longer than 1.5 days.
The Tribunal is satisfied that a suspension is not punitive. The purpose of the power to suspend in section 36 of the Education Act is clearly set out in the Explanatory Memorandum to the Education Bill 2003, namely:
…to ensure that all government schools maintain an environment that supports effective teaching and learning free from disruption, violence or threats of violence and that individual students comply with reasonable requirements regarding their behaviour, necessary for their education, safety and wellbeing and that of other students.[37]

Conclusion
[37] Exhibit R2 at [27]

For the reasons set out above the Tribunal finds that:
(A) On the evidence before the Tribunal XY has not established
(i)      any failure on the part of the respondent to comply with the conditions precedent to exercising the power to suspend ZZ;
(ii)     that the power to suspend ZZ was otherwise exercised improperly;
(iii)    that the reviewable decision maker exercised her discretion in relation to that review improperly; and

(B)The decision to suspend ZZ was the correct and preferable decision having regard to the evidence before the Tribunal in relation to ZZs behaviour, the needs of the other students and staff at the school and the purpose of the power to suspend.

Pursuant to section 68 of the ACAT Act the decision under review is confirmed.

………………………………..
Presidential Member E. Symons

HEARING DETAILS

FILE NUMBER:	AT 7/2018
PARTIES, APPLICANT:	XY
PARTIES, RESPONDENT:	Director-General, Education Directorate
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member E Symons
DATES OF HEARING:	30 May 2018