The applicant did not witness the incident, so her statement carries little weight. I consider the contemporaneous first-person accounts mentioned earlier - including D's statement - to be the best source of evidence about what happened.
One of the teachers working in Student Support, contacted D's father about the incident and, after speaking with him, contacted the applicant. She told the applicant that D needed to remain at home the following day while the investigation was continuing.
The next day, which was a Friday, the principal reviewed the statements prepared the previous day. She met with the mother of one of the students at the mother's request to discuss the impact of the incident on her daughter. In her witness statement, the principal said: "They were considering a police report due to the weaponising of the incident and the trauma experienced as the victim did not know the implement wasn't a knife".[7] The principal held meetings with staff to discuss how the school should respond before deciding to suspend D for three days.
The principal explained how she arrived at the decision in her witness statement:
I spoke with the Student Support team around the knowledge we had of D, his additional needs and the plans that had previously been in place for him. The team knew D well and articulated what work had been done with the family previously around D's learning, well-being and attendance.
The incident involved serious threatening behaviour towards another student. The victim was left physically marked and emotionally impacted. I deemed it unsafe behaviour.
I discussed what supports we would need to put in place for the students involved with the students support team. We discussed the time required to put these in place for the students, the best way to proceed and what resources, inclusive of human, were needed.
The supports to be put in place were as follows: a debrief with those involved inclusive of witnesses, conversations to be had with involved students to see if a restorative conference could be successfully conducted, engage with a psychologist to support D, engage with schools Youth Support Worker and schedule and prepare a anger management course for D, facilitate a timetable check and any resulting class changes that might need to occur, complete a safety analysis of D and his access to sharps in future and consideration impulse control measures to support him in the future.
We considered an internal suspension however the staff used to supervise this were also the staff that required time to put things in place prior to D's return. We had 19 staff away on Friday and a year 7 camp out Mon-Wed the following week. The students in the class and the students directly involved were very shocked and quite impacted. Some time to debrief and reset was deemed appropriate in looking after the students' well-being.
Taking all available factors into account I made the decision that D would be suspended for 3 days.[8]
At the principal's request, another teacher working in student support telephoned the applicant to inform her of the decision and that in the meantime, D should continue to complete his classwork on Google Classrooms.
The applicant was unhappy with the decision and asked the teacher to arrange for the principal to call her.
The principal telephoned the applicant that afternoon. The principal's witness statement included the following account of the conversation:
[2]
I contacted the mum... Who informed me she was not happy with the decision to suspend D. I spoke through the incident with [the applicant] the impact that it had had on other students and what we were going to put in place to support both D and the other students to repair the harm caused and as potential risk mitigation strategies to reduce the likelihood of a similar incident occurring again.
[3]
[The applicant] indicated she was concerned D would see the suspension as a reward and a holiday. I strongly encouraged her to engage him in his schoolwork and ongoing learning via our online learning platform.
[4]
At the end of the conversation [the applicant] was not in aggreance (sic) with the suspension. I informed her that with all safety and well-being factors of all student involved considered, the suspension would still be enacted.[9]
[5]
In cross examination by the applicant, the principal said:
[6]
So the contents of the discussion was around the serious, threatening nature of the incident, the impact that it had had on other students in the class and the victims, the conversation that I had had with the mother of one of the victims and, following due process, the information that was in the incident statements from staff that the number of things that needed to be put into place to reduce the risk of a recurrent event occurring would mean that we would need some time to put those into place and that those things would be some access to the psychologist for D, some tier two programs that would be investigated for D around anger management, the possibility of a restorative conference being set up and put in place, and that those things were required to take time and that D would be suspended for three days while those things could be put in place to ensure the most productive return to school.[10]
[7]
Later in the cross-examination, the principal said:
[8]
We needed to put a number of things in place to support or reduce the risk of a repeat incident. He had gone from zero to 100 quite quickly in that instance and there were things that we needed to put in place so that we could be satisfied that we had done all we could to make sure that an incident like that was not repeated.[11]
[9]
I read all the student statements, I read all the staff statements, I went and had individual conversations with [the teachers involved in running the Harmony Day event]. I had a discussion with my student support team. I had a discussion with my SLC of inclusion and support. I gathered all the information that I thought would be pertinent to making the decision. I reviewed the incident. I deemed the incident to be serious and threatening. I looked at what we would need to put in place to mitigate the risk of it occurring again.
[10]
I decided that that would be three days' worth of work putting some things in place before we successfully attempted to re-enter D. I looked at my staffing profile to see whether I could one-on-one staff that for three days, decided that it would be too resource intensive that we would not be able to adequately supply safe supervision, one-on-one supervision for those three days, and I made the decision that suspension for the three days was where we were going in response to D's action.[12]
[11]
In her witness statement, the applicant gave the following account of the conversation:
[12]
I called the school principal Ms... and begged not to exclude D from school explaining D's circumstances that he was just establishing the routine to go to school, making tremendous efforts. His hard work at the Harmony Day event was an example of his efforts to participate in school activities. D being out of school itself would not benefit anyone including M1, D, peers or school staff. Moreover, it would undermine D's effort to go to school.
[13]
The school principal was very blunt when she told me that D had suddenly snapped and stabbed a girl with a 'dagger' or 'weapon', leaving a mark on her neck. The principal also added that after stabbing the girl, D chased her to verbally abuse her even further.
[14]
The principal insisted that they had to look after the girl's and everyone else's safety and well-being, therefore D had to be kept at home. I told the principal that D was remorseful. I also argued that D being out of school and everyone's safety and well-being were entirely separate issues. The principal abruptly ended the conversation by saying, "we have to agree to disagree," and hung up shortly after.[13]
[15]
In cross-examination by the respondent, the applicant could not remember whether she had proposed any alternatives to suspension but thought she may have suggested there were other alternatives to keeping D home for three days. She agreed she said that it was a bad decision for D and that he would treat it as a holiday. She agreed discussing D's absenteeism. She agreed the principal had told her it was a very serious issue, involving an assault on a child and about the impact on the victim and other students' safety. She agreed the principal had told her that all of those things needed to be considered. The applicant agreed the principal had listened to her and, after a lengthy conversation, had ended the call saying words to the effect, "well, I think we need to agree to disagree".[14]
Unsurprisingly, there were differences in the principal's and the applicant's recollection of the details of what was said during a lengthy conversation on a subject that obviously was highly distressing for the applicant. However, having regard to the applicant's concessions in cross-examination, their evidence was broadly consistent in material respects, differing mainly in matters of emphasis.
At about 12:48 p.m., shortly after the principal ended the telephone call, a formal notice of suspension was emailed to the applicant. The notice advised that D was suspended for three days until Tuesday, 26 March 2024 on the grounds that, on 21 March 2024, he engaged in unsafe behaviour resulting in harm to persons and/or posing an unacceptable risk to health and safety, learning and well-being. The notice stated that Student Support had telephoned the parents outlining that the Principal was considering suspension, the behaviour for which he may be suspended, reasonable alternative measures to suspension, the length of the proposed suspension and how the school would support continued education during the proposed suspension. The notice stated that in making the decision, the principal considered the risk of harm to a person, the behaviour the student engaged in, the impact of that behaviour on the safety and effectiveness on the learning environment, in-school alternative programs, immediate adjustments to the learning environment, mutually agreed leave and other relevant information including information provided by the parents and by D. The principal concluded that reasonable alternative measures were not appropriate because they did not provide adequate opportunity to mitigate future risk of recurrence of the behaviour leading to suspension. The notice stated that learning materials would be provided to D during the period of suspension, counselling was available if required and that a re-entry meeting had been arranged for 9:00 am on 27 March 2024. Under the heading 'Re-entry following suspension', the notice said:
[16]
The purpose of a suspension is to provide a break in school attendance, to allow the school to plan and implement additional supports needed for a safe and effective learning environment upon the student's return. The school will review all reasonable adjustments currently in place for the student and work with you to make any reasonable adjustments necessary to support the student returning to school.
[17]
The applicant claimed in her witness statement and in oral evidence that she first came to realise that D had been 'suspended' when she read the notice of suspension. She insisted that neither the principal, nor the teacher who called to inform her of the principal's decision earlier in the day, had used the word "suspended". I am satisfied that the applicant is mistaken in her recollection. Her insistence that neither said that D was suspended strikes me as highly improbable in circumstances where the principal (a) had made the decision to suspend, (b) had asked the teacher to inform the applicant of her decision, (c) had contacted the applicant to discuss the matter when informed that the applicant was unhappy with the decision (d) had prepared a formal notice of suspension which was emailed to the applicant shortly after the conversation ended and (e) had no reason to avoid using the word.
After reading the notice of suspension, the applicant left a message for the principal to call her back. The principal was made aware of the applicant's message on the Monday morning but did not return the call.
On 23 March 2024, the applicant requested a review of the decision to suspend her son. The following statements are extracted from the request:
[18]
The grounds provided in the paperwork failed to adequately explain the events that transpired. I must highlight a significant disparity between the account provided by the principal and D's explanation to me.
[19]
On 21 March, D diligently contributed to preparing Dutch pancakes for sale on Harmony Day, dedicating four hours of hard work, only to have a female student, Ms X, disregard his refusal and take one of his portions of pancakes anyway at the end of the event. Her subsequent mocking prompted D's frustration. Moments later, a group of girls, dressing similarly to Ms X, approached for food. D, still upset from the previous encounter, attempted to deter them using a soft silicone kitchen utensil, believing it harmless and ineffective verbal refusal due to Ms X's prior behaviour. Regrettably, it lightly brushed against Ms Y's neck, allegedly leaving a mark. While I cannot verify this mark's existence, I question whether the silicone could have caused harm, considering even a gentle press of a fingernail can leave a temporary mark.
[20]
Contrary to the principal's assertion, D did not pursue or mistreat Ms Y. Rather, he sought to address Ms X's behaviour. D's intention was to caution her against stealing food, not to engage in abuse.
[21]
I contacted the principal seeking clarification on how D staying at home for three days (although I did not know it was a suspension until I received paperwork afterward) would contribute to the safety of students. Unfortunately, the principal provided no substantive explanation, merely assuring preventative measures would be implemented. Despite my attempts to discuss the matter further, the conversation was abruptly halted. Subsequent attempts to address the discrepancy in accounts were met with silence, contradicting the school's purported openness to dialogue.
[22]
It was great shock to us to receive this suspension notice, especially for D, who had worked tirelessly for four hours without having breakfast or lunch, serving others with no expectation of any monetary or other rewards at the community event, only to have his sense of accomplishment undermined by someone taking advantage of his kindness. While I agree that D's way of expressing frustration and anger was inappropriate, I cannot emphasize enough how unfortunate it was for him to have his hard work and sense of achievement taken away in such a manner.
[23]
I firmly believe that D's suspension not only unjustly stigmatizes him but also exacerbates his existing anxieties about his school environment. Such punitive measures risk eroding his trust in school authorities and undermine his efforts to overcome challenges. While D acknowledges his wrongdoing and the need to manage his emotions, the suspension offers no constructive resolution. Prior to this incident, D exhibited no violent tendencies and has been quite cooperative at school, as previously affirmed by his teachers.
[24]
On 12 April 2024, the Director General, Education Directorate upheld the decision to suspend, noting that the school had followed the required process in accordance with the Interim Suspension, Transfer or Exclusion of a Student in ACT Public Schools Policy 2023.
[25]
Chapter 2A of the Education Act 2004[15] deals with suspension, transfer, expulsion and exclusion of students.
Section 17G provides that a decision-maker for a school may suspend a student at the school only for the purpose of ensuring a safe and effective learning environment at the school.
Section 17H(1) provides that the decision-maker for a school may suspend a student at school if satisfied that the student has engaged in 'unsafe or non-compliant behaviour', the school has exhausted all 'reasonable alternatives' to suspending the student, and it is reasonable to suspend the student considering all the circumstances, including any views of the student and their parents about the proposed suspension.
For the purposes of applying section 17H, 'unsafe or non-compliant behaviour' includes behaviour that reduces the safety or effectiveness of the learning environment at the school because it poses an unacceptable risk to the safety or well-being of another student at the school[16] and 'reasonable alternative' means an alternative that a person is reasonably able to take considering all relevant matters.
Section 17H(2)(a) provides that a decision-maker for a government school with a delegated principal - as was the case here - must not suspend a student unless they have complied with the requirements for involving the student and their parents in the decision-making process under section 17L.
(2) Before taking the proposed action, the principal must take reasonable steps to tell the student, and give the parents written notice, about the proposed suspension, including -
(a) the grounds for the suspension including details of -
(i) the student's unsafe or non-compliant behaviour; and
(ii) how they have exhausted reasonable alternatives to suspending the student; and
(b) the length of the suspension; and
(c) how the school intends to support the student to continue their education during the suspension; and
(d) the decision-making process for the suspension, and how the student and their parents may take part in the process and have their views heard.
(3) However, the principal may take the proposed action before giving the parents written notice if -
(a) the student's unsafe or noncompliant behaviour presents an immediate or imminent risk of harm to a person; and
[27]
Examples - behaviour that presents an immediate or imminent risk of harm to a person
[28]
the student was physically violent to another student
...
[29]
(b) the principal tells the student and their parents, orally, about the proposed suspension, including -
(i) the information mentioned in subsection (2)(a) to (d); and
(ii) that the suspension starts immediately.
[30]
(4) If the principal takes the proposed action under subsection (3), the principal must, as soon as possible, give the student's parents written notice about the suspension, including the information mentioned in subsection 2(a) to (d).
[31]
(5) If a principal takes action under subsection (3) and a student is suspended before any views of the student and their parents about the suspension may be considered, the decision-maker may, after considering the views of the student and their parents, revise the suspension in any way the decision-maker considers reasonable.
[32]
(6) If the decision-maker revises a suspension under subsection (5), the decision-maker must tell the student, and give the student's parents a revised suspension notice.
[33]
Unfortunately, the applicant was fixated on what she perceived to be deficiencies in the decision-making process. The applicant focused on the prohibition in s 17H(2)(a) against suspending a student unless the decision maker had complied with the notification requirements in s 17L(2). She argued that the decision should be set aside on the grounds that (a) she was not given written notice of the proposed suspension, (b) the principal gave no, or no adequate, consideration to reasonable alternatives to suspension, and (c) neither the applicant nor D had any meaningful opportunity to participate in the making of the decision, including having their views heard.
This is a false issue.
It is settled law that in a merit review of an administrative decision - which is what this application concerns - a tribunal is required to make the correct or preferable decision on the material before the tribunal, not the material before the original decision maker: Drake v Minister For Immigration and Ethnic Affairs[1979] FCA 39; (1979) 24 ALR 577 at 589.
As Kiefel J explained in Shi v Migration Agents Registration Authority[2008] HCA 31 at [141], "the Tribunal reaches its decision as to what is the correct decision by conducting its own, independent assessment and determination of the matters necessary to be addressed". At [142] Her Honour said:
[34]
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision.
[35]
Even where a decision is technically invalid and would be declared invalid if an application for judicial review were brought in a court of competent jurisdiction - for example, on the grounds of a denial of procedural fairness - the ACAT is not deprived of jurisdiction to conduct a merit review of the decision and to make what it considers to be the correct or preferable decision on the material available to the Tribunal.
However, in deference to the applicant's submissions, I will deal briefly with the issues she raised.
Considering the sequence and timing of events surrounding the making of the decision, I am satisfied that the principal suspended D under ss 17L(3) and that compliance with s 17L(2) was not necessary.
Immediate suspension without giving written notice to the parents is available where, for example, the student was physically violent to another student - as happened here - and the principal tells the student and their parents, orally, about the proposed suspension, including the information mentioned in s 17L(2)(a) to (d) and that the suspension starts immediately.
The applicant was informed on Thursday afternoon that she should keep D at home on Friday while the school was completing its investigation. The principal decided to suspend D on Friday morning without consulting the applicant and hearing her views in relation to the proposed suspension. The purpose of the teacher's telephone call to the applicant on Friday was to inform the applicant that D was suspended and to tell her about arrangements made for him to continue his schoolwork during the period of the suspension. The evidence does not establish what, if anything, was said about how the applicant's views might be heard, although clearly, the applicant succeeded in conveying her disagreement with the decision and desire to have her views heard by the principal.
Section 17L(5) provides for circumstances where a principal suspends a student under s 17L(3) before any consideration has been given to the views of the student and their parents. That is precisely what happened in this case.
The section provides that in such circumstances, the principal may, after considering the views of the student and their parents, revise the suspension in any way the principal considers reasonable. After she suspended D, the principal had a lengthy telephone conversation with the applicant in which the applicant made her views known. Having listened to what the applicant had to say, the principal remained of the view that suspension was appropriate. The conversation ended with the principal saying, "we need to agree to disagree".
Section 17L(4) requires the principal to give written notice about the suspension to the parents as soon as possible. The principal did so immediately after her call to the applicant ended.
The notice, in my view, is misleading in important respects. I am satisfied that some of the statements of fact appearing under the heading 'Further information' are not true. There was no Notice of Proposal to Suspend given to the parents before the telephone call on 22 March 2024. The applicant was not told that the principal was considering suspending D and there was no discussion of reasonable alternatives to suspension. Rather, the applicant was told that D was suspended for three days and that Friday would be considered part of the suspension and that he should continue doing his schoolwork using Googe Classrooms. Any consideration of the applicant's views occurred only after the principal had made her decision and arranged for it to be communicated to the applicant.
Any perceived deficiencies in the decision-making process and the obvious inaccuracies in the notice of suspension are immaterial to the decision I have to make for the reasons explained earlier.
The applicant failed to grasp this despite my attempts several times to steer her in the right direction.[17] Unfortunately, this means the applicant had little to contribute by way of evidence or submissions in relation to the real issues I have to determine.
[36]
Three questions arise for decision under s 17H(1).
[37]
(a) Has the student engaged in unsafe or non-compliant behaviour?
(b) Has the school exhausted all reasonable alternatives to suspending the student?
(c) Is it reasonable to suspend the student considering all the circumstances, including any views o the student and their parents about the proposed suspension.
[38]
Did D engage in unsafe or non-compliant behaviour?
[39]
At common law, an assault is "made out when an act of a person causes another person to reasonably apprehend a threat of force or violence".[18] The contemporaneous accounts and the teacher's observations of M1's emotional and physical state after the incident and the bright red mark left on M1's throat are consistent with her having been the victim of an assault.
The evidence satisfies me that D held an implement, having the appearance of an ice pick or other sharp object, against M1's throat long enough and with sufficient force to leave a red mark visible for some time afterwards If, as D said in his statement, he knew that the implement "wouldn't hurt her" when he "pointed" it at M1's throat, the inference that he intended to frighten M1, albeit not to injure her, is irresistible. The applicant conceded that D's actions caused a mark and frightened M1[19] but did not accept that his actions amounted to threatening behaviour.[20] However, she conceded that "it could be seen as threatening behaviour by the girl".[21] The applicant contended in her submissions to the Tribunal that D intended to "deter" M1, but not to scare or threaten her.[22]
I do not accept the applicant's characterisation of her son's conduct. The usual meaning of 'deter' is "to discourage or restrain (one) from acting or proceeding, though fear, doubt, etc."[23] I am satisfied that D intended to 'deter' M1 in that sense and that his actions achieved the result he intended, which was to cause M1 to stop what she was doing through fear of physical violence to her person.
In making the decision to suspend D, the respondent characterised D's conduct as "serious threatening behaviour". I am satisfied that it was.
The applicant eventually accepted that D had engaged in unsafe or non-compliant behaviour.[24] I am satisfied that he did.
Had the school exhausted all reasonable alternatives to suspension?
[41]
The principal's evidence is that she considered a range of factors in making her decision. They included D's special needs and the potential impact of a suspension on him, staffing shortages which precluded an internal suspension involving one-on-one supervision, the impact on the victim and other students traumatised by the incident, and the time required to put in place measures to provide psychological and anger management support for D, arrange a restorative conference and implement other measures to reduce the risk of any reoccurrence of an incident of that kind.
From an objective standpoint, all of those considerations were relevant. The applicant did not submit otherwise.
Balancing those considerations, the principal concluded that there was no reasonable alternative to suspending D for three days.
The applicant accepted that the measures the principal said should be put in place were appropriate but submitted that it was not necessary for D to be kept home from school for that to happen.[25]
It may be accepted that it was not 'necessary' - in the sense that D's absence from school was not a pre-condition to implementing the measures the principal considered appropriate - but the applicant was unable to explain why it would have been appropriate to allow D to return to school before the arrangements had been made. In other words, why would that be the preferable thing to do in the circumstances.
The applicant accepted that it was reasonable for the school to require D to stay home on the Friday but not on Monday and Tuesday.[26] She suggested that arrangements could have been made for a restorative conference between D and the victim on Monday, or possibly even on Friday - notwithstanding that on the Friday, the victim's parents were still considering reporting the incident to the police. Another alternative would have been to arrange for D to see the school counsellor on Friday. She was unable to explain why, in all the circumstances, either would have been a reasonable alternative beyond submitting that "Because they will help D and the suspension is not appropriate for D in that".[27]
Having regard to the objective seriousness of D's conduct, the lack of any objectively reasonable justification for it (despite the applicant's attempts to portray the incident in a less unfavourable light), the evident distress it caused to the victim and other students that witnessed the incident, the potential for the victim's parents to involve the police, and the obvious importance of putting in place arrangements to minimise the risk of any reoccurrence, I am satisfied that there was no reasonable alternative to suspension.
While the principal considered an internal suspension, involving one-on-one supervision by a teacher, the possibility was discounted because of a shortage of staff. The applicant submitted that this was not a valid reason. I disagree. Whether an alternative is reasonable in all the circumstances depends, at least in part, on whether the resources required to implement the alternative are reasonably available. In this case they were not. Even if there had not been any resource constraints, I doubt whether an internal suspension could properly be considered a reasonable alternative given the matters mentioned earlier.
Was it reasonable to suspend D considering all the circumstances, including the applicant's views?
[43]
The applicant was concerned that keeping D away from school would disrupt his routine, particularly where absenteeism had been an issue in his schooling. I accept the principal's evidence that she considered the possible detrimental effect of a suspension on D but decided that it was outweighed by other considerations discussed earlier in these reasons.
Although I gave the applicant every opportunity to explain why greater prominence should have been given to the potential detriment to D, she was unable to do so.[28]
The same circumstances that establish that there was no reasonable alternative to suspension, in my opinion compel the conclusion that it was reasonable to suspend D. In focussing almost exclusively on how the suspension may affect D, the applicant, in my view, has failed to grasp (a) the objective seriousness of his act, (b) that it could be seen as potentially criminal (although I express no opinion about whether it was or not), (c) the impact on the victim and other students and (d) the absolute necessity for the school to put in place appropriate measures to prevent any reoccurrence of a similar incident before allowing D back into the school environment, in the sense that a failure to do so would have been a serious abrogation of the school's responsibility to ensure students were provided with a safe and effective learning environment.