Public hearing 7: Barriers to accessing a safe, quality and inclusive education, Brisbane - Day 2

CHAIR:  Good morning everyone.  I'll invite Commissioner Mason to perform the Acknowledgement of Country today.

COMMISSIONER MASON:  I would like to acknowledge the First Nations people of Australia and their continuing custodianship of the lands on which we meet today for this hearing.  Thank you.

CHAIR:  Thank you very much.  Ms Bennett.

MS BENNETT:  Thank you, Commissioner.  This morning we will be hearing from a witness who we will refer to as "Amy".  You will find a copy of the statement in tender Bundle Part A, Volume 1 at Tab 7.  Commissioners the documents referenced in that statement are included in Tender Bundle Part A, Volume 6.  I would ask that the witness be sworn in before I tender those materials.

CHAIR:  Yes.  Thank you.

If you don't mind if I call you "Amy", please follow the instructions of Commissioner Atkinson's Associate who will explain what needs to be done.  Thank you.

MS "AMY", AFFIRMED

CHAIR:  Thank you very much.  Now, Ms Bennett will ask you some questions.

EXAMINATION IN CHIEF BY MS BENNETT

MS BENNETT:  Amy, you've made a statement of 39 pages for this Royal Commission; is that right?

MS AMY:  Yes.

MS BENNETT:  It's dated 25 September 2020.

MS AMY:  Yes.

MS BENNETT:  And are the contents of that statement true to the best of your knowledge and belief?

MS AMY:  Yes, they are.

MS BENNETT:  Commissioners, I tender that and asked it be marked as Exhibit 7.12, and the reference documents to be exhibited as 7.12.1 through to 7.12.52.   
Commissioners.

CHAIR:  Yes.  Thank you.

EXHIBIT #7.12   STATEMENT OF MS "AMY"

EXHIBITS #7.12.1 TO #7.12.52   ANNEXURES TO STATEMENT OF "AMY"

MS BENNETT:  Commissioners, the State of New South Wales have also asked that some material that is relevant to the case study be tendered, and I will take this opportunity, if it please the Tribunal.  Most of the material is included in Tender Bundle Volume 7, with an additional statement at Tender Bundle C, Volume 1, Tab 6.  Tender Bundle Part D, Volume 1B, Tabs 47 to 49.  I tender those documents and ask they be marked as Exhibits 7.53 through 7.85.

CHAIR:  Yes.  Thank you.

EXHIBITS #7.53 TO #7.85   ADDITIONAL CASE STUDY MATERIAL

MS BENNETT:  In addition, Commissioners, I should make some observations about the non publication orders made this morning.  In addition to the three non-publication directions noted in Senior Counsel's opening yesterday, a further non publication direction was made by the Royal Commission this morning. That direction prevents, among other things, the disclosure of the names of New South Wales State schools attended by the child, I will refer to as "Sam", and staff who work at those schools subject to limited exceptions.  Further, additional documents included in Part A of the Tender Bundle, being documents related to Sam, are not to be published even after they are tendered into evidence, subject to limited exceptions.

With those matters, Commissioners, I propose now to take some evidence from Amy.

CHAIR:  Yes.  Thank you.

MS BENNETT:  Thank you.

Amy, tell me about what your current occupation is?

MS AMY:  I'm a speech pathologist.

MS BENNETT:  And how long have you had that role?
 

MS AMY:  I've been a speech pathologist for 20 years.

MS BENNETT:  And you have a 9 year old son who we will refer to today as "Sam", is that right?

MS AMY:  He is 10 now, just recently 10.

MS BENNETT:  Can you tell the Commissioners a bit about Sam?

MS AMY:  He's a very fun loving, quirky kid.  You can --- he can light up a room.  He's just a magnet for people.  They want to generally help him and just enjoy being around him.  When he gets excited ---

MS BENNETT:  What are his interests like?

MS AMY:  He is into Minecraft and Bakugan now which kids his age are into, Pokemon, surfing and horse riding.  He has done a horse riding camp these school holidays.  So yeah.

MS BENNETT:  Can I show the Commission some of Sam's art work at IND.0040.0008.005?

MS AMY:  Yes.  He is very much into his art and does art with a local artist every Thursday.

MS BENNETT:  I'm not sure my attempt to bring that art work up to the Commission's attention has been successful. I will make sure it is in the fullness of time.

CHAIR:  Just give us one moment, Ms Bennett, and I will just check on what is happening.  Thank you.

MS BENNETT:  Thank you.

CHAIR:  I'm told it's coming.

MS BENNETT:  Excellent.

CHAIR:  I'm sorry, Amy, sometimes the technology takes a little longer to work than we would hope.

MS AMY:  That's absolutely fine. I've been doing lots of Zoom therapy myself so I'm very, very used to it.

CHAIR:  Apparently it's not coming.  Now it is coming.  Yes.

 
MS BENNETT:  Thank you and thank you for sharing some of Sam's artwork.  When did you first think that Sam might need some additional support?

MS AMY:  So I noticed when he was six months, around six months old, that he wasn't responding to me as I would expect a child that age to.  And that he was getting very engrossed in objects and things but not necessarily people.

MS BENNETT:  Yes.  And so what did you do with that information?

MS AMY:  I'm trained in early intervention strategies so my husband and I started doing lots of “people games” we call them, to try and engage his interests and support him to be referencing people and engaging and then we started following up later on with therapies for that as well.

MS BENNETT:  And by the age of two he was mobile, I understand.  He was walking.  How did that change the landscape for you?

MS AMY:  Once he was mobile, he was off, and that was it.  So he would run and would not look back.  So we were often called "helicopter parents", I remember that phrase being thrown around a lot about us, and just told to leave him.  And when we were in safe places with groups of people, so say my parents, they would say, "Just leave him", and we would leave him and let them run after him when they realised he was not coming back.

MS BENNETT:  So he put himself in unsafe situations when he did that?

MS AMY:  Definitely.  He was running large distances.  He would run across roads without looking.  We wouldn't let him near a road without someone.  He was going into toilets and then playing in urinals and everything if he didn't have someone with him, so ---

MS BENNETT:  Sorry.  When he was four, he was diagnosed with a number of conditions.  Can you tell the Commissioners about those diagnoses?

MS AMY:  So Sam has had a lot of diagnoses.  When he was four he was primarily   when he had just turned three he got his first sort of bout of diagnoses, within three months we were told he had autism, suspected spina bifida occulta and left kidney hydronephrosis.  And then after that when he was 4 we had an extra diagnosis added, with --- I think that was childhood anxiety.  He had been to the gastroenterologist then and had bowel bladder, severe reflux.  He was being investigated for oesophagitis due to spine problems.  Some time around then he was diagnosed with Witkop syndrome, which affects skin, hair and nails.

MS BENNETT:  And it was around that time you engaged with Dr Sturgeon, a clinical psychologist?

MS AMY:  Yes.
 

MS BENNETT:  And he has been engaged with Sam ever since?

MS AMY:  Yes.  We are very fortunate.

MS BENNETT:  He was diagnosed with Generalised Anxiety Disorder; is that right?

MS AMY:  Yes.

MS BENNETT:  Dr Sturgeon tells us Sam's anxiety is altered through irritability, poor concentration and attention.  Can you tell the Commissioners how Sam is as you perceive it?

MS AMY:  In terms of his anxiety?

MS BENNETT:  Yes.

MS AMY:  So I guess that's one part of him, and that can be absolutely debilitating for him.  Certainly in terms of irritability, he becomes very worried about things that are going to happen.  He has difficulty transitioning.  He will want to complete something he started.  He can become aggressive at those times if he's not supported through that appropriately. So, yeah.

MS BENNETT:  So Dr Sturgeon was involved with Sam adapting and transitioning to preschool; is that right?

MS AMY:  Yes.

MS BENNETT:  And would you say that was a reasonably successful transition for Sam?

MS AMY:  Yeah.  He went to preschool at [redacted] and --- after having started daycare there, and he was --- Dr Sturgeon was involved in supporting their programme, and they were very good with adapting and starting his needs.

MS BENNETT:  I want to pause there and ask you.  Yesterday we heard from Dr Armstrong who talked about, among other things, the need for the importance of attitude and positive regard.  Can you tell the Commissioners if that's the sort of thing you observed in that preschool environment?

MS AMY:  Yeah, definitely. I watched Dr Armstrong yesterday and it really hit home because that's exactly what happened in that environment. Sam wasn't seen as being a naughty kid when he absconded and was clever and shadowed other families, pretending he was their kid and exiting the gate with them at four and five years' old.  He was seen as being clever and so, you know, they almost like celebrated with me sort of saying, "Gosh, he's so clever, he keeps us on our toes and wow, we have to keep up with him all the time."  But it was never, "Oh, your child ran out the gate and  
that's not okay, you then need to do X, Y or Z" or "We had to drag him back in".

MS BENNETT:  They saw your child with real strengths?

MS AMY:  Totally. Strengths.

MS BENNETT:  Values.

MS AMY:  Yeah.

MS BENNETT:  When the time came to transition Sam into primary school, you engaged Dr Sturgeon again?

MS AMY:  Yes.

MS BENNETT:  Tell us how you came to prepare him and them for his primary school career?

MS AMY:  We were very concerned about transition to primary school, and the timing of it, given he was not turning 6 until later in the year. So we really wanted to look at doing a later transition but we wanted to find the right school and so we visited quite a few schools and looked at the environments and there were certain things in certain school environments that wouldn't have been appropriate for his absconding and we perceived as being a risk in the environment as well.

And just attitudes in some of the schools.  And we went and met with the Principal and executive staff at the school that we ended up sending him to, and were really overwhelmed with their positivity, their willingness to accept Sam for what difficulties he had and their determination that they were able to provide the supports he would need, and that he would be safe and well taken care of.

MS BENNETT:  And were you concerned about starting Sam at the age of 5?

MS AMY:  Yeah.  I discussed with the executive staff that I wanted to delay, and if we could start in term 4 instead of beginning at the start of the year and have a transition period, and that had certainly been the recommendation from preschool as well.  And was told that, no, he would need to start at the beginning of the year and as he was turning 6 in that year, he had to start that year.

MS BENNETT:  And did you provide the school with some of the strategies that had worked with the preschool environment?

MS AMY:  Yes.  Yep.  So they were emailed through from the primary educator at the preschool and they were forwarded to the school and the educator attended one of the meetings, from memory, but she definitely attended one of the handover, like normal kindy transition days, and actually went with Sam throughout his morning activities there.  And discussed with the staff.
 

MS BENNETT:  And you were able to have your own healthcare professionals attend the school and discuss things with the staff; is that right?

MS AMY:  Yes.

MS BENNETT:  And Dr Sturgeon attended school and observed Sam early on after he started?

MS AMY:  Within the first week, from memory.

MS BENNETT:  Now, you talked before about Sam and transitions.  Is it your understanding it would take some time for him to settle into a new environment like this?  Was this your expectation?

MS AMY:  Enormous, and we had done an enormous amount of preparation to get him ready even to start school, but settling into the school environment, yeah, it would take a significant amount of time and relationship building, because he didn't know people.

MS BENNETT:  I'm sorry.  In your experience, what's the importance of consistency and routine and structure for Sam to successfully transition?

MS AMY:  Vital.  Absolutely vital.  And we need to prepare for any changes.

MS BENNETT:  All right.  Now, as I understand it, it was around the second week of school when you were told that Sam had had an outburst.  Do you remember that?

MS AMY:  Yes.

MS BENNETT:  And did the teachers talk to you about the kind of interventions they had in place at the time?

MS AMY:  From memory   from memory they had started with minimal interventions in place as they were planning to see how he went, and then implement things.  And then they began saying that, we were told by the principal that we hadn't provided any information to the school so how could they support him appropriately.

MS BENNETT:  Just to be clear, there was a new Principal at this point?

MS AMY:  Yes, there was.

MS BENNETT:  You had spoken to one Principal last year and a new Principal was in place in the school?

MS AMY:  Yes.

 
MS BENNETT:  And did you have a different sense of attitude with the new Principal in place?

MS AMY:  Definitely.  You know, previously very welcoming and accepting of Sam's disability, and now it's --- or disabilities, and now it seems there wasn't going to be anything done to support him or no willingness to provide support.  So I was quite gobsmacked that there was a comment that nothing had been provided, and I actually went in the next day with a wad of papers that we had provided with all the reports, all the recommendations and provided that --- handed that to her, to say, "Look, this is what we've provided".  Yeah.

MS BENNETT:  And how is your relationship with the classroom teachers at this point?

MS AMY:  Fine.  Yeah, they were giving me updates on how Sam was going, and I thought, keeping me informed about what was happening.

MS BENNETT:  Now, you're aware that a member of the department, Mr Potter, has made a statement in these proceedings and that statement attached a 30 page ledger of behaviours that are said to be engaged in by Sam, starting on 2 February, a few days after he started and going until he finished.  Now, I just want to pause at this point and ask if you had ever seen that document before this Royal Commission.

MS AMY:  No.  No, I haven't.

MS BENNETT:  And having read it now, are there things in there that surprise you?

MS AMY:  I'm shocked, to be honest.  Shocked at the punitive nature of interventions.

MS BENNETT:  The reason I ask at that point is that it's 9 February when you're told that Sam has had an outburst and there's discussion about what kind of interventions might be put in place.  According to that document there had been a number of issues and incidents before that.  And I guess I'm wondering how you feel in retrospect about how well informed you were kept.

MS AMY:  That's why I said I thought the teacher was keeping me informed, because I feel now what I thought then is very different to what was actually happening.  And some of those incidents I just look at, and for me there's flags there for, did he have a urinary tract infection, he's had a bowel motion and he has chronic constipation, so that's something we needed to know about and we were tracking and monitoring.  He gets bleeding from his bowels regularly so, you know, while it's marked as an incident in behaviour for us, that's actually a medical aspect that needed to be communicated about what was happening so that we were able to look at what was happening around that and why did it happen that way.

And, you know, then in terms of the behavioural incidents and the absconding  
incidents, no, that was our greatest fear sending him to a school, that he would run and that school was on a main road and we said that repeatedly our main concern is that he will run to that road and we were assured there was no way he would be able to, he would be safe at school.

MS BENNETT:  I just want to come back to February 2016.  Sam is still 5 years old and he's still in his first month of transitioning to this school environment, and it's around this time that you receive your first notice of intention to suspend him.  Is that right?

MS AMY:  Yes.

MS BENNETT:  That was said to be for aggressive behaviour.  Just to be clear, this wasn't a suspension, it was putting you on notice that suspension was on the cards for Sam.  Is that how you understood it?

MS AMY:  It was putting us on notice.  It was presented to us like "Reign him in, or he's going to be suspended".

MS BENNETT:  And what did the principal tell you about the possibility of suspension?

MS AMY:  That she could have suspended him 10 times already.

CHAIR:  Amy, do you mind if I ask you a couple of questions to get the chronology straight.  By the way, do you have your statement with you?

MS AMY:  I do.

CHAIR:  Okay. Because there's no problem if you need to refer to it to refresh your memory when you are answering Ms Bennett's questions, so don't hesitate to do that if that helps.

As I understand, what happened is that Sam began at the beginning of February at the school, and then a week later you had that advice that there had been an outburst and that was on about 9 February.  Is that right as far as the chronology is concerned?  You deal with this, I think, at paragraph 42.

MS BENNETT:  Yes.

CHAIR:  Now, just so I'm clear about that, you were not told at that time that there was any suggestion of suspension or anything like that?

MS AMY:  No, not from memory.  No.

CHAIR:  And when you spoke a little while ago about problems that Sam had been experiencing, had some of those problems you now know occurred between, say, the  
2nd when he started or thereabouts, and the 9th, were these problems [audio distorted].

MS AMY:  So they've listed incidents from the 3rd of the 2nd where Sam had run away and the significant other incidents from the 2nd through the 3rd, 4th, 5th, 8th.

CHAIR:  And you knew nothing about these at the time?

MS AMY:  Not from my --- not in terms of the way this has been written out, no.

MS BENNETT:  And, Chair, it might assist, the incidence reports from Tender Bundle A, Volume 6, Tab 99 is the document being referred to.  Sorry, Tab 94.

CHAIR:  Thank you.

When you were telling us about the warning of a possible suspension, that's on about 23rd or 24th February, is that the chronology?

MS AMY:  Yes.

MS BENNETT:  Yes.

CHAIR:  Thank you. I just wanted to get the period of time straight.  So this is happening about three weeks after Sam, who is 5 years old, has started at school?

MS AMY:  Yes.

CHAIR:  Thank you very much for clearing that up. I follow.

MS BENNETT:  So it was still February and it was 24 February when you received that first notice of intention to suspend, and I think you were saying that you had a discussion with the principal about that.

How did you feel about the way that suspension had come into play for Sam?  The possibility of suspension come into play for him at this stage?

MS AMY:  I couldn't believe it, to be honest.  I couldn't believe that a 5 year old [audio distorted] at kindergarten that he had just started at.  I was absolutely floored.  For any kindergarten kid, I would think that's not a way to say welcome to the school, let alone a kid with additional needs who struggles.

MS BENNETT:  Did Sam know there was a risk he might be suspended?

MS AMY:  No.  Even when he was suspended he had no idea what was going on.

MS BENNETT:  Right.  There were learning support plans in place, weren't there?

 
MS AMY:  Not at that time there weren't.  We requested it before we started and there was nothing in place.

MS BENNETT:  All right.  So you had a meeting with --- I think you had a meeting with the staff shortly after that; is that right?

I'm just at your statement following paragraph 42.

MS AMY:  Yes.

MS BENNETT:  Yes.  And you had some discussions around the sorts of things that might help Sam from this point onwards?

MS AMY:  Yes.

MS BENNETT:  And you engaged some support ---

MS AMY:  I actually emailed them.  I don't know that we had a meeting.

MS BENNETT:  I see.

MS AMY:  I certainly had kids pulled out in front of me and --- with the kid that he had had that incident with was pulled out in front of me and shown in front of the whole class and parents walking past.  And shoved right in front of me at drop off with my child beside me, with Sam beside me, and I was told, "See, this is what he did."

MS BENNETT:  And how did that make you feel?

MS AMY:  Oh, I went to the car and just bawled my eyes out, to be honest, because no one wants their child to hurt someone else, ever.  And then to have someone   yeah.

MS BENNETT:  So I think it was just before the end of term 1, in your statement at 49, on 5 April you attended a meeting with the school to review Sam's progress and learning plan.  Is that right?

MS AMY:  Yeah.

MS BENNETT:  And what were you told then about teaching aide assistance that might be made available for Sam   just to be clear, there was teaching aide assistance for Sam from the day he started; is that right?

MS AMY:  No.  No, there wasn't.

MS BENNETT:  When did that start?

 
MS AMY:  I'm not sure exactly when the funding came through, because before he started we were told, like the week before he started, they have a little test about going to school and see how much you know.  My husband was told that there was no funding, he couldn't start on the first day.

MS BENNETT:  But that's not what ultimately happened.  He ultimately did start?

MS AMY:  He did, yes.

MS BENNETT:  And do you know when aide support was made available?

MS AMY:  So he had an aide from the first day, in the end.

MS BENNETT:  And it was at this meeting just before the end of term 1 where the amount of aide support was being discussed, is that right?

MS AMY:  Yes.

MS BENNETT:  Do you know what you were told about that, about the amount of aide support that Sam would be receiving?

MS AMY:  That it would be in line with the funding he got, and so that   you know, they would be finishing when --- at a time --- so they finished at a certain time each day, and that was because that's how much the funding covered.

MS BENNETT:  And did you think that was as much support as he needed?  Do you think he needed more or less?

MS AMY:  We discussed it wasn't necessarily the appropriate times, because there was consistent absconding in the afternoons, but there wasn't the funding to cover that time.

MS BENNETT:  I see.  The term break happened next and that started off 8 April, as I understand it was the end of Term 1 and Term 2 started, according to the records, on 26 April 2016.  Now, I think your evidence earlier was that it takes a little while for Sam to adjust to transitions.

MS AMY:  Yes.

MS BENNETT:  Did that count for the transition to and from holidays?

MS AMY:  It’s transitions from the weekends even still now are tricky for him.  So Mondays are always a bit tricky, because it's just a change in who is at home, going to work.  So it's a change.  So holidays are a big transition.

MS BENNETT:  It was 28 April when Sam was suspended for the first time; is that right?
 

MS AMY:  Yes.

MS BENNETT:  What were you told about the reason for the suspension?

MS AMY:  That it was aggressive behaviour.  We were told he had deliberately kicked his teacher in the knee.  We were actually told that he had tried to abscond, someone stood across the door, he turned around and kicked his teacher.

MS BENNETT:  Now, that word "deliberately", can you tell me what that means to you in the context of Sam?

MS AMY:  He wasn't doing things deliberately.  They were always --- well, they still are as an impulsive fight/flight/freeze, unfortunately for him he tends to fly or fight more than retreat.  So he goes into protective mode, and so if he's feeling cornered or threatened, that may ---

CHAIR:  Is there any reason why we shouldn't put up on the screen the letter of 28 April?

MS BENNETT:  No, Commissioner, it's at IND.0040.0001.0058.

I understand it has been redacted appropriately.

MS AMY:  Thank you.

CHAIR:  Has it?

MS BENNETT:  Amy, I will read out the relevant parts.  It says:

This is to inform you that today I have suspended your son Sam this is consistent with the procedures in the Department of Education and Communities for suspension and this school's discipline code.

It goes on to the reason:

Aggressive Behaviour   deliberately kicking his teacher in the knee ....

And then it identifies the things that are required to do.  The principal says she will seek your assistance and work with you in an attempt to resolve the matter, hold a resolution meeting, arrange an interpreter if necessary, provide you with a copy of the school discipline code and the Department's suspension and expulsion procedures.

Is that the letter you received?

MS AMY:  Yes.  I actually ---
 

CHAIR:  Amy, this is a letter that you get from the school that says your 5 year old son is being suspended because of breaches of the discipline code   

MS AMY:  Yes.

CHAIR:  --- and that presumably you read the passage that said:

[We will] provide you with a copy of the discipline code and the suspension and expulsion procedures.

May I ask you whether you realised at that time that expulsion was something that was possible for your 5 year old son?

MS AMY:  No.  It became pretty evident when I was provided with that and the timeline, from memory you had to have a certain number of suspensions and then expulsion could be considered.

CHAIR:  Thank you.

MS AMY:  So we were looking at, that they are trying to clock up the suspensions to get the expulsion.

CHAIR:  Thank you.

MS BENNETT:  All right.  What happened with Sam's education while he was on suspension?

MS AMY:  The school did end up sending a workbook home which had some words that he had to trace, and he found incredibly boring and difficult because he has significant fine motor difficulties.  So we stepped in and adapted curriculum for him.

MS BENNETT:  Both you and your husband work full time; is that right?

MS AMY:  Yes.

MS BENNETT:  How did you fit that in at short notice?

MS AMY:  In hindsight, I have no idea but we have   I own my own business and run it and have incredibly supportive staff and amazing clients who were able to understand and be flexible, so I could take time off and my husband's work were very flexible as well and allowed him to have time off which we had to often go up and get Sam from school, and we were fortunate that we were able to do that in our jobs as well.

MS BENNETT:  Now, a risk allocation plan was put in place some time after Sam returned to school, and I can bring that up if the Operator would bring up  
IND.0040.0001.0061.

MS AMY:  That's something we specifically requested because we had noted that, you know, he was entitled to have that given the behaviours that they have now reported.

MS BENNETT:  Were you consulted about this plan before it was drafted?

MS AMY:  No.

MS BENNETT:  Were there any matters of concern for you in this plan?

MS AMY:  That he was being sent to a locked playground.

MS BENNETT:  Why was that a concern for you?

MS AMY:  Because Sam had already said he hated it and didn't want to be there and it was restricting his play with his peers that he had formed some friendships with.

MS BENNETT:  Now, it was around this time that Sam started to attend school part time.  That is, he stopped attending on Wednesdays.  Can you tell the Commission about how that came to pass?

MS AMY:  So we had been --- I guess it had been discussed even before he started, and then when he started and then with teacher aide time. So it had been from memory, suggested that he'd do half days  every day and we had felt that would be quite disruptive for him because there were things in the afternoon that he was saying he enjoyed.  So we had discussed having Wednesdays as a day, from memory, it was the school's position that it was a day to have a rest, but from our perspective, Sam kept schooling. 

MS BENNETT:  And he was schooled on the Wednesdays by who?

MS AMY:  He had a   she was early childhood trained, kindergarten trained teacher, who was also working as an SLSO in another class, another school.

MS BENNETT:  And you paid for her?

MS AMY:  Yes.  So we were lucky to be in a position where we could pay for someone to come in and support him.  We felt that that was easier for him than having us try to teach him.  He wasn't wanting to learn from us at that time.

MS BENNETT:  All right.  You say in your statement it was around June when the principal said that they were considering suspending Sam again, and that appears at paragraph 60 of your statement.  How did that make you feel?

MS AMY:  Just --- look, every time suspension was discussed I just couldn't believe  
it.  I couldn't believe it for a kid that age, in kindergarten, let alone for a kid who emotionally was functioning at a 2, 3 year old level.  So socially, emotionally, had no idea what was going on and they were expecting him to understand what was going to happen.

MS BENNETT:  That suspension ultimately came on 7 June.

Could I bring up that notice, Operator.  It's at IND.0040.0001.0068.  What was the length of time of that suspension, Amy?

MS AMY:  So that one was two days.

MS BENNETT:  And it was again expressed to be for aggressive behaviour?

MS AMY:  Yes.

MS BENNETT:  Is that right?

MS AMY:  Yes.

MS BENNETT:  The principal identified their responsibilities in that letter as being:

  seek your assistance and work with you in an attempt to resolve the matter.
  hold a resolution meeting for you ....
  arrange an interpreter .... if necessary.
  provide you with a copy of the school discipline code and the Department's suspension and expulsion procedures

Those are the same obligations as the last notice of suspension, weren't they?

MS AMY:  Yes.

MS BENNETT:  In fact, save for the dot point, save for two paragraphs, it's in a largely similar form?

MS AMY:  Yes, they were all the same except the behaviour was changed, from memory.

MS BENNETT:  And the dates were changed.

MS AMY:  And the dates, yes.  Well, the April one you would notice I actually changed the dates on that one because the incorrect dates were in, so I imagine it was from another student's suspension.

CHAIR:  Amy, each of those letters has a sentence towards the end which says:

The school expects that Sam will continue with his studies while suspended.
 

Did the school provide any assistance during the term of the suspension as to helping Sam with his studies?

MS AMY:  Photocopied sheets or workbooks that they had had from class.  Most of the time I had to go back in and pick it up, which in itself was extremely difficult because either my husband or I were at home with Sam by ourselves, and he wasn't allowed on the school grounds, so actually trying to find the time to get in to get the school pack was a nightmare, but we just figured it out and normally did it when --- between sort of handover, I would come home early or my husband would come home early from work, and we sort of slotted in there.

CHAIR:  Thank you.

MS BENNETT:  You just said that Sam wasn't allowed on school grounds.  What made you say that?

MS AMY:  We were told while he was suspended he wasn't allowed on school grounds.

MS BENNETT:  Even to pick up his schoolwork?

MS AMY:  No.

MS BENNETT:  All right.  He returned to school after his suspension and you had a meeting with the principal before his return to school; is that right?

MS AMY:  Yes.

MS BENNETT:  Around the time of his return to school, I should say.

MS AMY:  Yes.  So we had to have meetings every time before he returned to school and that's when he was allowed to be on school grounds.  If we didn't have that meeting he wasn't allowed to be on school grounds.

CHAIR:  Ms Bennett, that's actually what the letter says in the last of the dash points.

MS BENNETT:  Yes.  Thank you, Chair.

Now, after the June suspension you again engaged Dr Sturgeon to assist in identifying or understanding Sam's behaviours.  Is that right?

MS AMY:  Yes.  Definitely.

MS BENNETT:  And were they passed on to the school?

MS AMY:  Yes, they were.  He always did either an email or a report summarising  
his recommendations.

MS BENNETT:  Yes.  And what was your impression of the way that those recommendations were being received at this stage?

MS AMY:  Look, I think throughout there were certain staff who could see the benefits of it and went out of their way to try and make sure they could assist.  And there were others that obviously didn't feel it was appropriate.

MS BENNETT:  And you expressed your gratitude to those staff you felt were really going out of their way to help Sam.  Is that right?

MS AMY:  Definitely, yes.

MS BENNETT:  Now, as Term 3 started, that started on 18 July 2016 and you had some more meetings about the learning support plan.  Now, as I understand the position then, Sam wasn't having lunch with his peers.  What was your view about that?

MS AMY:  We had discussed that and the teacher noted in his communication book that he couldn't attend the regular playground because there wasn't support for him at that time, so he had to go to the locked playground, as Sam used to call it.

MS BENNETT:  I actually just received a note asking to remind you to refer to Sam as Sam.

MS AMY:  I've done that a few times.

MS BENNETT:  I'm sure our operators are picking it up on the livestream.

MS AMY:  Sorry.

MS BENNETT:  Don't apologise.

It was on 5 August you received a third suspension letter, and you were asked to come and pick up Sam.  Could we bring up the third suspension letter dated 5 August, and it is marked IND.0040.0001.0090.  And again we will see that the reason --- what were you told about the reason for this suspension?

MS AMY:  I hadn't really received much information about this and then got told a whole heap when we got provided the suspension note.  We were asked to come to school, we got provided that and just got this whole list of things that had happened.

MS BENNETT:  And what was your response to that?

MS AMY:  In terms of how I felt about that?

 
MS BENNETT:  Yeah.  Tell me how you felt about that?

MS AMY:  I was devastated.  I just --- I just don't --- I couldn't understand why suspension was being used and there were supports that had been recommended that weren't being used.  And, yeah, I just kept looking at this little kid who had no idea what was going on and just trying to do his best with what he had, and we were trying to figure out what was going on for him.

MS BENNETT:  Had Sam turned six yet, by 5 August 2016?

MS AMY:  No.  No.  He was still five.

MS BENNETT:  Okay.  Now, this suspension you disputed in writing to the New South Wales Department of Education; is that right?

MS AMY:  Yes.

MS BENNETT:  Now, how did you work out how to instigate an appeal?

MS AMY:  I was trying to remember this.  I think because we had been given the Discipline Code, I looked it up and saw that there was grounds where you could appeal, and from memory, in the expulsion policy, I could see the suspensions clocking up and I could see that's the way it was heading, so I really wanted to have those suspensions reviewed independently, outside of the school, and get some supports in place to look at what we could do, because it just didn't feel like anything was changing after each suspension.

MS BENNETT:  So that third suspension was for two days.  Did you get a response to your appeal before the suspension was over?

MS AMY:  No.  Not from memory.

MS BENNETT:  And in fact I think that you received the letter, which was dated 17 August, on 22 August and I'll ask the Operator if they could bring that document up.  IND.0040.0001.0099. Is that the response you received --- well, it's dated 17 August and I think you tell us you received it on 22 August.

MS AMY:  Yes.

MS BENNETT:  But in either event, that's the response you received?

MS AMY:  Yes.

MS BENNETT:  And it says here that the person who considered your appeal had considered the following information:

  information provided by .... Public School in relation to Sam.
 
  information gained from conversations with [a person].
  the Department's Suspension and Expulsion of School Students   Procedures ....

I just want to ask you about that first dot point, the information provided by the school.  Was that also provided to you?

MS AMY:  No.

MS BENNETT:  So did you know what the reviewer was taking into account when they were taking into account that information?

MS AMY:  No.  Not at all.

MS BENNETT:  Right.  And nonetheless it was part of the reason, as you understand it, that the appeal was rejected?

MS AMY:  Yes.

MS BENNETT:  Okay.  Now, the letter lists a number of supports that the reviewer says were in place for Sam and they go on page IND.0040.0001.0100, the second, the following page, if the Operator can turn over the page.  There are a number of supports listed both on that page and the following page and over the page again.

Now, what was your view about whether or not those supports were being provided in the way that they were listed?

MS AMY:  My husband and I were quite shocked because one of the things we had said for Sam is that restraint was an absolute trigger for him, and yet it's listed as a support for him.  Suspension being listed as a ---

MS BENNETT:  I will just ask the Operator to bring that up.  That's the third point on IND.0040.0001.0100, second page of the letter, heading "Support", third dot point.  Thank you.

So that was listed as one of the supports, was to restrain him for his safety?

MS AMY:  Yes.

MS BENNETT:  And did that concern you?

MS AMY:  Enormously.

MS BENNETT:  Sorry, I think you were in the middle of explaining to the Commissioners the reason for your concern and I interrupted you, I'm sorry.

MS AMY:  You're all right.
 

That had been a trigger for Sam.  I think it's a trigger for any child, really, being restrained.  But particularly for him, and we specifically said "You need to move away if he's aggressive".  But, yeah.

MS BENNETT:  And what about the balance of the supports that are listed?  Would you agree that they were in place?

MS AMY:  No, not at all.  I would agree that they were listed as supports that should be in place, but that they were in place and evidence of them being used consistently, no.

MS BENNETT:  Okay.  Commissioners, I'm reminded it's 11.57 and it might be an appropriate moment to break, and it's convenient for my perspective to take a morning break.  It's not morning much longer in the AEST.

CHAIR:  That's fine, we can do that.

It is important, Amy, I should say, that if at any stage if you need a further break when we come back, please let us know.  It's not an easy thing for you to talk about in this environment.

I just want to, before we break, to check on one thing.  There is, in the documentation, a confidential psychological report dated 20 June 2016 Dr Sturgeon which talks about the support that Sam needed in order to address his complex needs.  I'm not sure whether we can bring that up because I'm not sure whether it has been redacted.  Do you remember that report [audio interference]?

MS BENNETT:  I might assist the Operator, Chair, it's NSW.0029.0001.0060.

CHAIR:  I have a different reference number.

MS BENNETT:  I know, I had five different ID numbers for that particular document ---

CHAIR:  As long as it's the same document, that's fine.

MS BENNETT:  Yes.

CHAIR:  Are we sure there's not a problem?

MS BENNETT:  Let me bring up the precise one.  It is NSW.0029.0002.0044.  Is that the one the Chair is referring to?

CHAIR:  I'm referring to the one that stops 0018 on 20 June 2016.  I don't know if we need to bring it up.  What I wanted to ascertain from Amy was whether this document or Dr Sturgeon's recommendations were communicated to the school in or  
about late June 2016, some weeks before the events we're now talking about took place?

MS AMY:  Yes.  Definitely.  Those documents were passed as soon as they were received.

CHAIR:  So we know from that document that Dr Sturgeon said, among other things, that clearly the two and a quarter hours of support per day is insufficient, and the school executives and parents and professionals all agreed with the [audio distorted] to manage his behaviour.  So that was in fact communicated to the school in 2016?

MS AMY:  Yes.

CHAIR:  Thank you.  That's what I wanted to clarify.

MS AMY:  Those documents were written for the school.

CHAIR:  I see.  It was specifically for the school?

MS AMY:  Yes.  The same as the paediatrician’s letter as well.  Following their reviews, they both asked what was needed and I said, "Your information to provide to the school."  And so they wrote down what they felt needed to be conveyed, and we then provided that to the school.

CHAIR:  Thank you.

Ms Bennett, shall we take 20 minutes?

MS BENNETT:  If it please the Commission, yes.

CHAIR:  Thank you.  We will adjourn for 20 minutes and then we will return.

Amy, thank you very much.

MS AMY:  Thank you.

ADJOURNED    [11.01 AM]

RESUMED    [12.20 PM]

CHAIR:  Thank you, Amy.  Yes, Ms Bennett.

MS BENNETT:  Thank you, Chair.

 
Amy, I think we were around at 17 or so of August in 2016, and that's when your appeal against Sam's third suspension had been rejected.  Now, on 22 August, so a couple of days later, you received another suspension for Sam.  Can you tell the Commissioners how long that suspension was for?

MS AMY:  So that was the --- well, 20 days, which was actually 24 days suspension.

MS BENNETT:  So that, Commissioner, appears as IND.0040.0001.0113, which is at tab 52 of Commissioners' bundles.

Now, that letter is said to go from   that says that the suspension goes from 22 August 2016 to 22 September 2016.

MS AMY:  Yes.

MS BENNETT:  Now, you said it was "20 days".  So can you explain how it ended up being more than 20 days?

MS AMY:  So because Sam had Wednesdays as a day not at school, that wasn't considered to be one of the days within the suspension because it wasn't a school day.  So ---

MS BENNETT:  Did you specifically ask that question at the time?

MS AMY:  Yes, I did.

MS BENNETT:  And what were you told?

MS AMY:  That he --- that wasn't considered.  So the Wednesday wasn't a school day so he would be --- have to stay off the days, so the four extra days or five extra days, to take into account the Wednesdays.

MS BENNETT:  And did you ask if that included 22 August itself?

MS AMY:  Yes, I did.

MS BENNETT:  And did it?

MS AMY:  From memory, no, it didn't.

MS BENNETT:  So it was 20 days plus a day for each of the Wednesdays when he was being home-schooled in any event?

MS AMY:  Yes.  And the Monday, because he had been at school that day, that wasn't considered as a suspension day, from memory.

MS BENNETT:  All right.  Did you have any idea that a suspension of that length  
was being considered?

MS AMY:  No.

MS BENNETT:  What did it mean --- I'm sorry    

MS AMY:  I'm sorry.

MS BENNETT:  What did it mean for you and your family to have 20 days of schooling that you are now responsible for?

MS AMY:  Well, it's just 20 days that our lives were suddenly thrown into turmoil because we weren't prepared for having our son at home for 20 days.  He was meant to be schooling.  And so we had to quickly try to organise work and leave and our lives around being able to support him being at home now.

MS BENNETT:  And did you talk to the school about those impacts on you and your family?

MS AMY:  I did.  I spoke to the principal because it meant that we wouldn't have leave to either visit my husband's family who were away or my extended family who were away, and --- at Christmas, which we had intended to because we would need to use that leave. In terms, for me because I had my work situation, it would mean loss of income as well and loss of clients potentially as well.  But I didn't discuss that directly with the school.  That was a consequence of it, though.

MS BENNETT:  Please continue.

MS AMY:  Yes.  Yeah, just --- I tried to discuss that with them, that we weren't aware, we weren't prepared and I was a bit overwhelmed, really.

MS BENNETT:  And what was the response to your raising those concerns?

MS AMY:  He was suspended and that was it.  That was our problem.  There was no response.

MS BENNETT:  Now, according to the calendar I have, Term 3 ended on 23 September and Sam could return, according to this letter on 22 September.  So did Sam go back at all for Term 3?

MS AMY:  No.  From memory, no, he didn't.

MS BENNETT:  So is it right to say that the next time Sam set foot at the school was for Term 4 on 10 October or thereabouts?

MS AMY:  Yes.

 
MS BENNETT:  Had Sam turned 6 yet?

MS AMY:  No.  He was still 5.

MS BENNETT:  So Sam returned to school for Term 4.  Can I ask about how you were feeling?  I get the sense you were feeling fairly optimistic at the start of Term 1.  How were you feeling by the start of Term 4?

MS AMY:  We were just hanging in there, really.  It made the decision --- well, my husband and I had made the decision that as soon as Sam wasn't happy we would withdraw him, do something.  We thought he was happy at school because he got up every day, put his shoes on, put his uniform on, went.  But in hindsight and with him being able to explain now he felt, we can see that that was just his routine so that's just what he felt he had to do each day.  And he did that even when he was on suspensions.  So by Term 4, we were pretty exhausted.

MS BENNETT:  So I think I said that Term 4 started around 10 October and it was 21 October when you received another notice of intention to suspend Sam, which Commissioners is at IND.0040.0001.0142.  How did you feel getting that notice at that stage?

MS AMY:  Couldn't believe it, to be honest.  You would think after a 20 day suspension that the school would have had plenty of time to review their procedures and strategies and would have that in hand at that stage and ready to support Sam back at school.  So, yeah.

MS BENNETT:  Now, as I understand it, there was a behaviour management plan that was put in place that you refer to at paragraph 89 that was there for the start of term?

MS AMY:  Yes.

MS BENNETT:  And a risk management plan?

MS AMY:  Yes.

MS BENNETT:  But you nonetheless received a notice of intention to suspend a short time later?

MS AMY:  That's right.  So the plans, in hindsight, with the benefit of looking at the incidents and the list of incidents, were meaningless.

MS BENNETT:  What makes you say that, Amy?

MS AMY:  There's no reference to the strategies in the plans within any of the incidents as being used.  Like, nothing from any of those plans was actually listed in any of the incidences being employed as a strategy to support or assist.
 

MS BENNETT:  Commissioners, I'm told Sam is about to arrive home from school and it might assist if Amy has a break for a moment to allow for that to happen.  Is that right, Amy?

MS AMY:  No.  It could be in about another hour or so.

MS BENNETT:  I'm sorry, Commissioners.  That is a timing issue, I apologise.  In which case I will proceed on.

Now, around this time you were asked only to communicate with the Deputy Principal?

MS AMY:  Yes.

MS BENNETT:  How was your relationship with the Deputy Principal?

MS AMY:  Good.  I was more than happy to have discussions with her.  She was lovely in her manner with me and appeared to be supportive.

MS BENNETT:  Yes.  Now, you appealed Sam's 20 day suspension, didn't you?

MS AMY:  Yes.

MS BENNETT:  And you used the same process that you used in relation to the 5 August suspension; is that right?

MS AMY:  Yes.  I believe with this one we escalated it to the Executive Director, though, who was sort of the next step up.

MS BENNETT:  That was finalised on around 16 November 2016.  Is that about right?

MS AMY:  Yes.

MS BENNETT:  That letter says - and a copy can be found at IND.0040.0001.0150.  Yes.  Now, that letter apologises in the third paragraph.  It says:

I apologise that this matter has taken longer than the indicative time period because of the complexity of the matter and [the] delay in being able to speak with you.

I ask the Operator to take that down because I'm not sure there should be a redaction of a name.  Amy, do you recall the efforts being made to contact you around that time?

MS AMY:  I can't remember being exactly contacted.  I remember discussing it with  
the person, but I do remember that my father was having open heart surgery at the time so everything was a bit of a blur, so I wasn't easy to contact.  He was in intensive care and he had complications as well.

MS BENNETT:  If I can draw your attention to the dot points, the additional information considered in that letter.  This identifies the material that the reviewer, Mr Potter, had before him, and they note that he had in regard to an interview with the relieving Principal at the public school.  Do you have any idea what the content of that discussion was?

MS AMY:  No.

MS BENNETT:  Okay.  It records a conversation with you on 26 October 2016 and that's --- you don't recall whether that occurred or not?

MS AMY:  Sorry.  Could you repeat that?

MS BENNETT:  It says there was a conversation with you on 26 October 2016?

MS AMY:  On 26 October.  Yes, sorry, with the staff member.  Yes.

MS BENNETT:  Yes.

MS AMY:  Sorry.

MS BENNETT:  No, that's okay.

MS AMY:  I'm trying to get everything straight in my head.

MS BENNETT:  No, it's difficult.  Okay.

So those are the materials you understood were taken into account, and that appeal was again rejected.  How did you feel about the system responding to you and your family at this stage?

MS AMY:  It was very cold, very bureaucratic.  There was a lot of emphasis on "we hadn't done stuff", like I hadn't responded to phone calls and --- yeah ---

CHAIR:  Can I go back a step, and I'm sorry if this causes us to go back a little.  If we look at that letter from Mr Potter of 16 November, we see in the last complete paragraph of the first page, and he says that in making the decision to suspend Sam on 5 August you believe that Sam's disability was not taken into account.  Mr Potter then says:

Having reviewed the information available to me, including the appeal conducted by Mr Eastcott, I find that the school was well aware of Sam's disability, and had put in place extensive support and accommodations to  
support Sam.  I concur ....

Says Mr Potter:

.... with Mr Eastcott's findings that the school had correctly applied the policy ....

So it's pretty clear from this, as I read it, that we need to go back to Mr Eastcott's decision and reasons of 17 August to see what Mr Potter may be talking about.

MS BENNETT:  I apologise, Chair.  Perhaps I should clarify.  This letter does two things.

CHAIR:  Sorry, which letter?

MS BENNETT:  The letter of 16 November.

CHAIR:  Yes.

MS BENNETT:  Does two things.  You will see from the first paragraph it is a review by Mr Potter of the review carried out by Mr Eastcott, and it is a review of the Principal's decision on 22 August to again suspend Sam   yes, to again suspend Sam.  So Mr Potter carries out both a review of Mr Eastcott's decision and a review of the 20 day suspension.

CHAIR:  I think I understand that.  I want to go back to the 17 August letter from Mr Eastcott just to get Amy's response to some of the matters that are referred to there.

In that letter of 17 August Mr Eastcott recommends, and it's on the fifth page of the letter, 0103, that a meeting be held between you, Amy, and I assume your, husband, and the two named persons to develop a communications plan.  He also notes that:

.... your letter indicated that you expect the school to contact Sam's therapists.  This is not the responsibility of the school. .... any such contacts are the sole responsibility of the parent/caregiver.

Do you remember that statement in the letter?

MS AMY:  I do, and I responded to that in ---

CHAIR:  Do you know what that's a reference to?

MS AMY:  I had discussed, from my memory, in my letter, that we had offered for the school to be in touch with our therapists in order to support with behaviours and they hadn't contacted the therapists when there had been behaviours.  We had contacted and asked therapists to go in and review.  So that was simply acknowledgement or an observation that staff hadn't --- it wasn't a demand for staff  
to call, it was that "They are there, they know their contact numbers, they're there to help.  Call them.  That's what they're there for."  And ---

CHAIR:  Was this the first time you had been notified that the school had no intention of contacting the therapist?

MS AMY:  Yes.  I didn't realise that they had no intention of contacting therapists.

CHAIR:  All right.  Then the next paragraph in that decision says, it notes your request that Sam's SLSO time be increased to full cover.  Then it goes on to explain the process.  It says that:

.... the school initially allocated additional funding to assist in Sam's transition to school, but these allocations are not sustainable long term and are at the sole discretion of the school.

What did you understand that to be about?

MS AMY:  The school decides who gets what support, when.

CHAIR:  And what had happened to Sam's support over the period of time leading up to 17 August?

MS AMY:  The school decided what support he got, and when and they had reduced his support and his absconding had increased, I could tell you what time he would abscond, because     (overspeaking)    

CHAIR:  Would you mind telling us what the reduction in support was over this period of time from the school?

MS AMY:  I'm not sure of the exact figures but there was a plan in one of the --- maybe the risk management plans or the support, the learning support plan to reduce his support in line with the IFS funding.

CHAIR:  And I suppose if we read that with the letter of 16 November concurring with the findings that the school had correctly applied the policy and the decisions were reasonable, that would include the reduction of support because that was consistent, presumably as you understood it, with the policy of the school?

MS AMY:  No.  I assume so, yeah.

CHAIR:  Thank you.  Sorry to take up time but I just wanted to link the two documents.

MS BENNETT:  I'm grateful, Chair.  Thank you.

MS AMY:  Can I just make a comment on that, if that's all right?
 

CHAIR:  Sure.  Of course you can.

MS BENNETT:  Of course.

MS AMY:  In terms of the two documents, for us it was quite devastating for us with Mr Potter's document because we had gone above Mr Eastcott because --- we had gone to Mr Eastcott in the first place because we had already discussed it with the Principal and being told we hadn't provided anything, there was nothing more they could do for Sam, what more could we expect.  We went to Mr Eastcott, he went to the Principal, and came back to us with everything we already had been told but weren't seeing in place.

We then went to Mr Potter and then to read that he had gone to Mr Eastcott and to the Principal was just --- it felt like we were stuck in a loop of we're never going to get anyone to see --- to have an independent review of what's actually happening and support our son.

MS BENNETT:  Amy, on that point of a loop, can I draw your attention to the second paragraph from the end of that 16 November letter.  It says:

I note that you have raised concerns that not all aspects of support and accommodations listed in Mr Eastcott's letter have been effectively implemented.  I would ask that you raise these matters with ....

That's a reference to the principal.

.... in the first instance and if you are not satisfied with the outcome that you contact Mr Eastcott ....

And then his phone number follows.  Is that an example of the loop that you were talking about?

MS AMY:  That's exactly it.  You're reaching out for help, and begging someone to help and look at it and support, and you get referred back to the situation that you're in already.  So we had already been through those processes, we had already had those discussions, we had hit a brick wall.  We were looking for independent guidance and support.

MS BENNETT:  Yes.  We're now into --- I'm sorry, Chair?  We're now into ---

CHAIR:  I'm just looking again at the letter of 16 November on the second page.  And what it says is, after a concern about procedural fairness had been raised:

Principals regularly consult with their Directors ....

And Mr Eastcott was the relevant Director.  It says:
 

Mr Eastcott's role was to provide advice and guidance.  However, the Principal makes any decisions regarding suspension.

If we go back to the letter of 17 August and Mr Eastcott, Director, is making a decision by way of appeal, dismissing it from the decision of the principal.

MS AMY:  Yes.

CHAIR:  I'm just drawing attention, and no doubt Mr Potter will address this in due course, that it doesn't seem Mr Eastcott's role was simply to provide advice and guidance, Mr Eastcott is a decision maker in the process.

MS AMY:  On that note too, when we were provided with the suspension, the principal stated she had been directed by the Director Mr Eastcott to make it a 20 day suspension.  Which is why we requested the review in terms of procedural fairness, because we felt that he had become   obviously he was making an instruction and a direct recommendation around that, rather than it being at the principal's discretion.

CHAIR:  Thank you.

I shall try and keep quiet for a while, Ms Bennett.

MS BENNETT:  I find your interjections very helpful, Chair.  Thank you.

We are now in late November 2016 and, Amy, were you feeling welcome at the school at this point?

MS AMY:  No.  And can I just elaborate on that too, because ---

MS BENNETT:  Please.

MS AMY:  “Welcome” is not just in terms of the suspensions and everything.  We had, I guess going through this process, it has just made me think of the greater side of things.  We were new kindergarten parents who had no idea about how kindergarten worked, what happens on certain days.  You know, they had a day that was “red day” which was “pizza day” or “junkie food day” which we had no idea about, our son is on a very specific diet.  And we were given no preparations around any of that just as parents, kindergarten parents, let alone parents of a child with multiple medical and emotional and psychological needs.  So, yeah, we didn't feel welcome in a lot of ways.

MS BENNETT:  But coming to the following year you again engaged with the school to talk about supports for Sam for the 2017 year; is that right?

MS AMY:  Yes, we did.

 
MS BENNETT:  And you were optimistic about the New Year?

MS AMY:  Yeah, we were.  The teacher seemed really lovely and we thought it was going to go really well.  It would just be a new start and we were hoping that the original Principal would be back as well, because they had been seconded to another position, so we were sort of having our fingers crossed that that might happen as well.

MS BENNETT:  Okay.  And it was, I think, the seventh day --- seventh school day of that year that Sam was suspended again.  Is that right?

MS AMY:  From memory ---

MS BENNETT:  A warning of suspension, I'm sorry, a notice of warning of suspension, not an actual suspension.  I apologise.

MS AMY:  Yes.

MS BENNETT:  That is at paragraph 106 of your statement.

Commissioners, that note is at IND.0040.0001.0183.

How did this make you feel about your optimism for the 2017 year?

MS AMY:  It was gone.  Yeah.

MS BENNETT:  All right.  The following week, you received a “planning room slip” to let you know that Sam had been sent to the planning room because of repeated "inappropriate approaches" to another student.  Now, that is at IND.0040.0001.0184.  What did you understand about that planning room as a space for Sam?

MS AMY:  This was the first I had actually heard about planning room.  I didn't know what planning room was, so I actually had to ask.  Sam wasn't able to tell me   well, he told me at the time it was for naughty kids.  He wasn't able to tell me why he was there.  And so I had to discuss with the school what the slip was for and why he was in there.

MS BENNETT:  And what did they tell you about that?

MS AMY:  They discussed that he had been approaching another child, which is a child that he had --- in preschool even, had gone to preschool together, so we notified the school about --- before they even started that there was a bit of a love/hate relationship.  And just that he had been sent there during lunchtime.

MS BENNETT:  And what has Sam told you about the planning room since that time?
 

MS AMY:  Sorry.

MS BENNETT:  Take your time.

MS AMY:  He has told me he went there a lot and numerous times throughout the day sometimes.  And when I asked him if he wanted to go there, he said “that's where the naughty kids go.”  It's just where he was sent.  When I talked to the school about it, at the time they said that Sam was requesting to go there.

CHAIR:  Amy, would you like to take a little break for a few minutes?

MS AMY:  No, that's all right.

CHAIR:  Are you sure?

MS AMY:  Yeah.

CHAIR:  Okay.

MS BENNETT:  We have a clip of Sam which I think we can play the audio of, and this might be a good moment to do that.  If I could ask the Operator to play the clip.

VIDEO OF PLANNING ROOM STARTED

SAM:  They don't listen to me any way.

MS AMY:  So how did you feel about planning room?  Why is that?

SAM:  Usually I get --- really get --- really, really hungry in there, because I'm in my [unclear] all the time.  Even when I ask for food, they just say, "Shh, no talking in the planning room".

VIDEO OF PLANNING ROOM CONCLUDED

MS BENNETT:  And that was a recording that you took of Sam in an appointment with Dr Sturgeon; is that right?

MS AMY:  Yes.  Yes.

MS BENNETT:  Now, Sam was next suspended on 28 March for two days.

Commissioners, the document is IND.0040.0001.0043.
 

I apologise, Commissioners, I'm told that's the wrong ID.  It should be IND.0040.0001.0052.

And this was another suspension of two days; is that right?

MS AMY:  Yes.

MS BENNETT:  And it lists the same things that the principal will do and that you will do in response to this suspension that was listed in each of the other suspensions; is that right?

MS AMY:  Yes.

MS BENNETT:  Yes.  Now, how were you feeling at this stage?

MS AMY:  Pretty defeated.  Deflated.

MS BENNETT:  Yes.

MS AMY:  Questioning everything we had done, and wondering why this was happening.  And not --- you know, the kicking behaviour is something that we hadn't had at home and had started at school and appeared to start when he had been sort of blocked passage from leaving a room, and then continued to escalate after that point in time.  So there were new behaviours that were coming out too.

MS BENNETT:  Yes.  Now, that was in late March of 2017, and Sam then returned to school at the start of April with Term 1 ending on 7 April; is that right?

MS AMY:  Yes.

MS BENNETT:  So Term 2 started on 24 April and a notice of potential suspension was provided on 10 May.  And I won't take the Commission to that again.  But the school at this stage had a risk management plan in place, didn't it?

MS AMY:  Yes     (overspeaking)    

MS BENNETT:  I'm sorry, Amy, I spoke over you.  Can you repeat that?

MS AMY:  We were being reviewed five weekly because he had the Wednesday off that had to be reviewed every five weeks.  That was put in as a support but it wasn't actually a support, it was required on the school's part because of that day he was having away from school.

MS BENNETT:  Now, it was 15 May that Sam was suspended for the seventh time.  I take it he was six years old by this stage?

 
MS AMY:  Yes, he was.

MS BENNETT:  I will ask the operator to bring up the suspension notice, it's IND.0040.0001.0235.

Do you remember the length of this suspension, Amy?

MS AMY:  This was 20 days.

MS BENNETT:  And how were you feeling at this stage?

MS AMY:  Devastated.  Devastated because of the reason for it.  It didn't need to happen.  He had quite clear escalation signs that had been noted in the risk management, the behaviour management plans.  So even in this situation, a staff member should not have been within reaching space.  They were sitting down side by side.  So he should not have been able to even get to them.

MS BENNETT:  Well, I wanted to ask you a question about the risk management plan.  It appears at NSW.0029.0005.0936.  And that plan refers to, which we will see in due course, it refers to calling the police if Sam climbs a banister near his classroom.  Can you tell me about what the effect of that notation was on you?

MS AMY:  We had discussed that that wasn't appropriate.  They were concerned about the risks with him climbing the banister, which was a new behaviour that we hadn't been informed of previously, but I can see from the incident report from the school that it had been occurring.

And we were just really concerned for Sam's safety as well as the whole school, because we imagined that that would cause --- at least that building but, you know, the whole school to have to stop and evacuate and, you know, for police to be coming as well it's just a huge disruption for everyone as well as a huge risk for him in terms of safety, and possibly falling off the railing.

MS BENNETT:  So was the risk management plan the first time you were told about the climbing of the banisters, was it?

MS AMY:  From memory, certainly the degree to what it was.  We may have been told that he was going on the banister but I wasn't aware of it being a risk behaviour.  I was aware that he had behaviours that were considered disobedient and not in fitting with a --- zones, like being out of bounds and everything, but I wasn't aware of it being a risk to his safety until this plan.

MS BENNETT:  Now, Sam never returned to that primary school; is that right?

MS AMY:  No.

MS BENNETT:  So that 20 day suspension was the last time he returned to that  
school?

MS AMY:  Yes.

MS BENNETT:  And why did he not return to that school?

MS AMY:  We decided --- we had already been doing so much home schooling and had developed resources.  My husband had changed his work shifts and I had changed my work to accommodate Sam being at home, so we decided to apply to home school at this stage and were accepted to complete home schooling.

MS BENNETT:  How do you reflect on these years at the primary school?

MS AMY:  The most stressful in my life.  Anyone who knows me will know the incredible pressure we were under as parents, and the fear that we had for Sam's safety in terms of his absconding behaviour, and every time that phone rang I was waiting to be told he was injured or possibly dead.

MS BENNETT:  How does Sam reflect on his time?

MS AMY:  He is traumatised by it.  Quite significantly.

MS BENNETT:  Amy, what do you hope from this Royal Commission, what would you like to tell the Commissioners?

MS AMY:  Just that I would really like for there to be an independent process where before kids even are looked at being suspended, that someone is looking through their file and actually seeing what is being done.  And I think Dr Armstrong yesterday was saying about having to use evidence based interventions before you can suspend a child or stand them down, that's so important.  I mean, having someone to be able to show that you've done that, to recognise that kids, you know, 5, 6 year olds just at that age don't have the capacity to process and understand a suspension, let alone a child with a disability who is emotionally and socially at a 2, 3 year old level.  You know, to see him get up every day and stick his school shoes on or go past the school and playing and wonder why he wasn't there was just horrific.  It's not something you can put kids through.  It's just damaging.  Sorry.

MS BENNETT:  No.  No.  If there was anything else you wanted to say, please don't let me stop you.

MS AMY:  You know, there shouldn't be a system where it can be manipulated to the point where parents feel they have no option to stay engaged within the school that their child is in and they have to pull them out to home school them.  For Sam, it has been amazing.  He's needed time to heal.  He has had significant PTSD, and even yesterday was asking about school uniforms and if they were his old school and getting quite anxious about the kids there.  He's triggered by uniforms, schools.  We only just now being able to do some visits to a school without him feeling nauseous,  
sick, getting worried about the kids, the uniforms.  So, yeah, it's just so much that can be changed.  Treating parents as human beings that want to be in partnership with the school, rather than people to blame or shut out.

So I was threatened with a trespass order, even though I also work in that school, that had huge personal and professional implications for me.  So it was an incredibly stressful way to be trying to work as a team to get the best outcomes.

MS BENNETT:  Amy, thank you for your time.

Commissioners, I have nothing further.

CHAIR:  Thank you, Ms Bennett.

Amy, if you don't mind, I will ask Commissioners if they have any questions for you.  I will start with Commissioner Atkinson who is in our Brisbane hearing room.

COMMISSIONER ATKINSON:  Yes.  No, thank you.

CHAIR:  Commissioner Mason is also in our Brisbane hearing room.

COMMISSIONER MASON:  No, thank you.

CHAIR:  And Commissioner Galbally is in Melbourne.

COMMISSIONER GALBALLY:  No, thank you.

CHAIR:  Amy, I want to thank you.  Just before you finish, I just want to draw attention to something that really is very striking when you look at the correspondence from the very beginning.

On 24 February Sam's behaviour is described as breaching the discipline code by being "aggressive behaviour".  Then as we proceed we find repeated references to deliberately --- 28 April 2016 --- “aggressive behaviour, deliberately kicking his teacher”.  And as we go on, on 7 June, aggressive behaviour of a certain kind.  And then there are further references in the correspondence, for example on 22 August, “aggressive behaviour, deliberately headbutting.”  And so it goes.

During this time, as I understand it, you had provided the school and authorities with a good deal of information indicating Sam's complex needs and explaining the kind of behaviour that was being characterised as deliberate and aggressive.  Have I understood what happened correctly?

MS AMY:  I believe that it clearly outlined the behaviour, yes.

CHAIR:  Under the general law, a child under the age of 10 --- and some people say that should be 14 --- of course, can't be responsible by way of the criminal law and  
here is a 5 year old, 6 year old characterised as deliberately kicking and deliberately engaging in aggressive behaviour.  Did you ever discuss that characterisation with the relevant people?

MS AMY:  On multiple occasions, and even when he was absconding they said he was deliberately running away because he would turn around and laugh at them.  And I explained that that was his fear reaction.  So whenever he was scared, he would laugh hysterically which is consistent with his diagnosis of autism, and displaying his emotions in an unusual way.  And I was told that that was deliberate.  He was running away on purpose and laughing at them, as he did it.  We discussed that that wasn't the case, that I was repeatedly told that no, he definitely knew what he was doing and he was getting a kick out of it.

CHAIR:  Thank you very much.  Amy, thank you very much for giving evidence.  It has been extremely helpful.  I know it's not easy to do, but we're very grateful for you being prepared to share your story   

MS AMY:  Thank you.

CHAIR:  --- and Sam's story with us.  We appreciate it very much.  Thank you.

MS AMY:  Thank you so much.

THE WITNESS WITHDREW

MS BENNETT:  Chair, would it be convenient to adjourn until 2.30 Melbourne time?

CHAIR:  2.30 which time did you say?

MS BENNETT:  Victorian time, which I think is 1.30.

CHAIR:  Just so I can understand, 1 hour and 20 minutes from now?

MS BENNETT:  Yes, Chair.  Thank you.

CHAIR:  All right, the Queenslanders will do their own translation.  Very good.

MS BENNETT:  If it please the Commission.

ADJOURNED    [12.10 PM]

RESUMED    [1.31 PM]
 

CHAIR:  Yes, Ms Bennett.

MS BENNETT:  Chair, we now have Mr Frank Potter of the New South Wales Education Department.  Commissioners will find a copy of his statement at Tender Bundle C, Volume 1, Tab 5.  And the reference documents are at Tender Bundle D Volume 1B, tabs 25 to 46.  I will tender those documents once we've heard from Mr Potter.

CHAIR:  Yes.  Thank you, very much.

Thank you, Mr Potter, for coming to give evidence to the Royal Commission.  If you would be good enough to follow the instructions of Commissioner Atkinson's associate, who happens to be in Brisbane, for the administration of either the oath or affirmation as the case may be.  Thank you very much.

MR POTTER:  Thank you.

MR FRANCIS HARRY POTTER, SWORN

CHAIR:  Thank you, Mr Potter.  Ms Bennett will now ask you some questions.  And just so you're familiar to the extent that any of us can be familiar with where we are, Ms Bennett is in Melbourne.  I am in Sydney in the Fair Work Commission.  Commissioner Galbally, who you can see on the screen, is in Melbourne, and Commissioners Atkinson and Mason are in the Brisbane hearing room.

MR POTTER:  Thank you.

MS BENNETT:  Chair, could I tender Mr Potter's statement and exhibits and ask they be marked Exhibit 7.86, and the reference documents 7.86.1 to 7.86.24.  I note here that two additional documents may be referred to that were not included in the tender this morning.  I understand they've been provided to the parties and the Commissioners.  They are NSW.0029.0005.0211 and NSW.0029.0001.5741.  I tender them into evidence and ask that they be marked as 7.87 and 7.88 respectively.

CHAIR:  Yes.  Thank you.  That can be done.

EXHIBIT #7.86   STATEMENT OF MR FRANCIS HARRY POTTER

EXHIBITS #7.86.1 TO #7.86.24   ANNEXURES TO STATEMENT OF FRANK HARRY POTTER

EXHIBITS #7.87 TO #7.88   ADDITIONAL MATERIAL

MS BENNETT:  If it please the Commissioner.

MS FURNESS:  Commissioner, it's Gail Furness here from Sydney.  Might I be heard?  Mr Potter had an amendment he wished to make to his statement, and perhaps that can be done before we begin?

CHAIR:  Yes, might I suggest that Ms Bennett just confirm the formal details of the statement, and then you can ask Mr Potter in order to make such amendments he would like to make to the statement.

EXAMINATION IN CHIEF BY MS BENNETT

MS BENNETT:  I'm grateful for my friend.

Mr Potter, you've made a statement of 29 pages dated 7 October 2020?

MR POTTER:  Yes, that's correct.

MS BENNETT:  I understand you've made an amendment to the final paragraph of that statement, that is paragraph 137; is that right?

MR POTTER:  Yes, if I may.

MS BENNETT:  Yes, please.

CHAIR:  Ms Bennett, is it convenient for Ms Furness to do that or are you going to do it?

MS BENNETT:  I thought I would simply do it now.

CHAIR:  Is that okay with you, Ms Furness?

MS FURNESS:  I'm happy for Counsel Assisting to do it.  Thank you, Commissioner.

CHAIR:  Thank you.

MR POTTER:  The table at 137 refers to a record of incidents that concerned Sam, and it indicates that this table was extracted from the Department's incident notification school records.  The table was generated by the school through the  
system known as EBS4, which is different to the notification incident system managed by the Department's Health and Safety Directorate, which is referred to in the first line of 137.  It makes no difference to the substance of the table.

MS BENNETT:  All right.

CHAIR:  Thank you, Mr Potter.

MS BENNETT:  Is that statement with that amendment true and correct to the best of your belief?

MR POTTER:  Yes, it is.

MS BENNETT:  I tender that, Chair.

Can I just ask a question about the changes made, Mr Potter.  In the original version your statement referred to the "Department's Incident Notification system".  Am I to understand from the change you've just made that there is a separate record keeping program at the school itself, that does not report into the Department?

MR POTTER:  It is called EBS4, but it is available to people to see within the Department, is my understanding.

MS BENNETT:  Yes, but the purpose of that system is for the school records to be accessible by the school, not to report ---

MR POTTER:  Yes.

MS BENNETT:  --- not to report things into the department.  Is that right?

MR POTTER:  Yes, that's correct.

MS BENNETT:  The Department Incident Notification system, by contrast, is a system which reports matters into the Department directly?

MR POTTER:  Yes.  To the Health and Safety Directorate.

MS BENNETT:  Yes.  So both systems are accessible by the Department but the Incident Notification System is a workplace safety system that is kept and maintained by the Department, whereas the EBS4 system is a system that is kept by the school for whatever purpose it considers appropriate.  Is that right?

MR POTTER:  That's my understanding.

MS BENNETT:  Yes.  What is the EBS4 system generally used for by schools?

MR POTTER:  As a record of events that might be happening within the school.
 

MS BENNETT:  Of any kind?

MR POTTER:  I would need to take that on notice.  I'm not sure of the extent of the recordkeeping system, knowing at this point it was keeping a record of the incidents in reference to today.

MS BENNETT:  Are you aware if the incidents you refer to in your statement were contemporaneously recorded in that system?

MR POTTER:  Yes.

MS BENNETT:  They were?

MR POTTER:  Yes.

MS BENNETT:  Does the system record who made those entries?

MR POTTER:  I'm not sure.  I would have to take that on notice.

MS BENNETT:  All right.  Thank you.  All right.  Now, Mr Potter, did you hear the evidence of Amy this morning?

MR POTTER:  I did.

MS BENNETT:  Now, your statement at paragraphs 127 to 136 reflects upon some matters that could have been done differently in relation to Sam.  And you identify four things you think could have been done differently there.  Is that right?

MR POTTER:  That's correct.

MS BENNETT:  Having heard from Amy this morning, do you have any additional reflections that you would like to add at the outset?

MR POTTER:  I have reflections on my management of the review.

MS BENNETT:  Yes.  Would you like to share those with the Commissioners?

MR POTTER:  I note that the review took longer than it should have.  There was an indicative timeframe.  It went longer than it should have gone, and I should have been more vigilant in terms of keeping an eye on that timeframe, though I understand that there were difficulties in collecting all the information from all the people that needed to be referred to.

MS BENNETT:  All right.  Are there any other matters you wanted to raise at the outset as reflections arising from Amy's story?

 
MR POTTER:  Not at this point.

MS BENNETT:  All right.  You started your career as a classroom teachers in the 70s, is that right?

MR POTTER:  That's correct.

MS BENNETT:  You were the Associate Director, Public Schools, between March 2013 and July 2017.  Can you tell the Commissioners what that involved?

MR POTTER:  Yes.  I was responsible for overseeing the work of approximately 15 Directors of Public Schools, who were working in approximately 600 schools across the northern part of New South Wales.

MS BENNETT:  Mr Potter, can you tell the Commissioners about your background or expertise in disability matters?

MR POTTER:  I was Principal for 14 years of two schools and both schools had support classes of students with disabilities attached, from hearing to language disorders to autism.  Also, moderate to mild and moderate to severe intellectual delay.  As well as that, in my second school, at one point in time there were 43 students who accessed the IFS funding in that school in the mainstream.

MS BENNETT:  And you are presently a member of Disability Strategy Reference Group; is that right?

MR POTTER:  Yes, that's correct.

MS BENNETT:  Yes.  Now, that reference group has produced a document that appears in your statement at annexure 2.  It is NSW.0029.0018.0005.  That document at page 15 observes that enrolment of children with autism are up in New South Wales by 14.5 per cent per year between 2013 and 2017.  That's a significant increase, isn't it, Mr Potter?

MR POTTER:  Yes, it is.

MS BENNETT:  And what steps, that you're aware of, has the Department taken to accommodate that increase in 2013 to 2017?

MR POTTER:  There has been an increase in the number of support classes, as well as the funding for students, integration funding support in mainstream classes.

MS BENNETT:  Have there been any changes to the way that classrooms manage students with autism spectrum condition in that time?

MR POTTER:  Nothing that I'm aware of that is formal other than the way in which we would expect classes to be managed.
 

MS BENNETT:  All right.  What changes are in the way you expect classrooms to be managed?

MR POTTER:  I don't think that there are any significant changes that I can speak to, other than there have been some online work programmes to assist teachers to understand working with students with disability.

MS BENNETT:  And is that because the Department considered that it was important or necessary for there to be additional support in that area?

MR POTTER:  I think it's a developmental process of enabling our teachers in terms of their professional learning, and have opportunity as new people come in, as well as other teachers, to avail themselves of those learnings.

MS BENNETT:  So you don't see it as being a response to the deficit that the Department identified in the way it was treating those students?

MR POTTER:  No.

MS BENNETT:  No.  Okay.  I want to ask you about adjustments and supports and the way that children are supported in the classroom.  You would agree, wouldn't you, Mr Potter, that New South Wales is obliged to provide supports and adjustments to students with a disability?  Is that fair?

MR POTTER:  Yes.

MS BENNETT:  Now, in fact in your suspension procedures document which you refer to at paragraph 15, you tell principals that they must provide reasonable adjustments.  I can show you that document, NSW.0029.0001.2767.  And the passage I'm referring to is at paragraph 4.6.  I'm grateful to the Operator.

Mr Potter, that refers to the obligations arising under various pieces of legislation and it appears to summarise them in the last sentence:

These require, among other things, that reasonable adjustments are provided to support students with a disability to access and participate in education on the same basis as other students.

That's what you understand the aim of that paragraph to be?

MR POTTER:  Yes.

MS BENNETT:  Can you explain to the Commissioners what you understand "reasonable adjustments" in that paragraph refers to?

MR POTTER:  Actions that would take place in a classroom to enable students to  
access a curriculum that is appropriate and relevant to them, to the same point that other students would have access to a relevant and meaningful curriculum.

MS BENNETT:  All right.  So actions that can take place in the classroom.  Can it include things being brought into a classroom to assist that student?

MR POTTER:  Yes, it can.  And also the school as well as the classroom.

MS BENNETT:  Can you give some examples to the Commissioners about what those sort of things might be?

MR POTTER:  There can be assistance to access the curriculum.  It can be curriculum supports that may be put in place to better understand what the curriculum is.  It can be modifications to the learning environment that might suit the student, and it can be additional staff to assist them in terms of their understanding of what's required in terms of accessing the curriculum.

MS BENNETT:  All right.  So a child with sensory needs, for example, you might change the classroom environment to make it more --- to make it less likely to cause sensory overload.  Would that be an example of a reasonable adjustment?

MR POTTER:  It could be.  In my experience as a Principal where we had a hearing class, we had hearing loops in place in the classroom to assist the students with hearing impairment.

MS BENNETT:  There is really no limit, is there, on what a reasonable adjustment could be provided it has that effect.  Is that fair?

MR POTTER:  It's couched in the word "reasonable", yes, that's correct.

MS BENNETT:  And so provided it assists the student access their education, then it's on the table to be considered.  Is that right?

MR POTTER:  Yes.

MS BENNETT:  And you've referred to the notion of reasonable as a limitation on that, and I would like to return to that in a moment.  But before we do, those ideas that we've just discussed, do they find any expression in the document we've just been talking about, those suspension procedures?

MR POTTER:  I would have to look at it carefully.  I'm not sure off the top of my head, but I can take that on notice as well.

MS BENNETT:  We might return to that after a break because I would like to talk to you about how a person reading and thinking about these procedures would understand these obligations.  You agree with me it's a very significant obligation on the Principal, isn't it?
 

MR POTTER:  Yes.

MS BENNETT:  And the classroom teacher in fact?

MR POTTER:  Yes.

MS BENNETT:  Is it right to say unless adjustments have been made properly, suspension shouldn't be considered?

MR POTTER:  Not according to the policy.

MS BENNETT:  All right.  Well, let me understand that.  So if adjustments are not made in accordance with 4.6, 4.6 tells the principal that they need to make those adjustments, don't they?

MR POTTER:  Yes.

MS BENNETT:  So to read the policy as a whole, how can you suspend a child without first providing those adjustments?

MR POTTER:  In the case of a student with a disability, those adjustments would be in place.

MS BENNETT:  Yes.  And so my question, Mr Potter, is if they're not, is it inappropriate for a Principal to proceed to suspend?

MR POTTER:  I'm uncertain as to what you are getting at.  Could you rephrase that for me, please?

MS BENNETT:  The policy appears to say you need to provide reasonable adjustments.  This is in the suspension procedures document.

MR POTTER:  Yes.

MS BENNETT:  Let me break this down.  The suspension procedures document tells a Principal the procedures that they need to go through in order to suspend a student.  Is that fair?

MR POTTER:  Yes.

MS BENNETT:  They ought to comply with any obligations in that document before they suspend a student; is that right?

MR POTTER:  Yes.

MS BENNETT:  Now, one of the obligations that I think you agreed with me was  
very significant, is at 4.6, that reasonable adjustments be provided.  Is that right?

MR POTTER:  Yes, that's correct.

MS BENNETT:  So my question, Mr Potter, is can a Principal properly suspend a student without having made reasonable adjustments for that student first?

MR POTTER:  It would not be my expectation that that could happen.

MS BENNETT:  Would it be a valid --- you're someone, Mr Potter, who reviews suspensions.  That's part of your role; is that right?

MR POTTER:  That's correct.  I review appeals to suspensions, I don't necessarily review suspensions.

MS BENNETT:  Yes, you did so in the case of Sam, though, didn't you?

MR POTTER:  I reviewed the appeal.

MS BENNETT:  I think your letter says you reviewed both the suspension and the appeal, but we will come to that in due course.  Accepting that you sit at the apex of that hierarchy --- just to pause there, Mr Potter, where would a parent go after you refused their appeal?

MR POTTER:  Most likely to external bodies.

MS BENNETT:  The Australian Human Rights Commission and the Federal Court?

MR POTTER:  Or the Ombudsman.

MS BENNETT:  You have the last say on whether a suspension has been properly imposed, is that right?

MR POTTER:  If I have reviewed the suspension, yes, or the complaint.

MS BENNETT:  So my question to you, if you were carrying out a review, would you ask yourself if adjustments had been provided for the students?

MR POTTER:  Yes.

MS BENNETT:  And if the answer to that question was no, they had not been provided, would you allow the appeal against that suspension?

MR POTTER:  I would.

MS BENNETT:  So you would agree with me then, Mr Potter, that before a Principal can properly suspend a student, reasonable adjustments need to be in place?
 

MR POTTER:  With a disability, a student with a disability, yes.

MS BENNETT:  Yes.  Thank you.  Yes.  You would agree with that?

MR POTTER:  Yes.

MS BENNETT:  I'm sorry, Mr Potter, I should say this proceeding is being translated in Auslan as we speak, and so it's important that you say your answers to my questions.

MR POTTER:  Yes.

MS BENNETT:  Thank you.  Okay.  So, given that we've agreed, I think, that reasonable adjustments must be provided before a child can be suspended validly, where does this document tell a Principal how to know if they have provided reasonable adjustments?

MR POTTER:  I don't think that it does.

MS BENNETT:  Okay.  Is that a difficulty, Mr Potter?

MR POTTER:  My expectation is that professional people in schools would clearly understand what was required in order to be in place to support students with disabilities.

MS BENNETT:  Okay.  Understanding that, that's your expectation?  Where does that expectation find expression in the policies or guidance in the policies of the New South Wales Education Department?

MR POTTER:  I'm uncertain.  I can't answer that one at this point.

MS BENNETT:  All right.  You've talked about your expectation that professional people will make a decision about adjustment.  So is that what you're really relying upon to ensure that reasonable adjustments are provided for students with disabilities?

MR POTTER:  And the advice that school personnel would take from other experts within the department or external experts.

MS BENNETT:  All right.  Well, let me ask you about that.  What role would you expect, for example, in the case we've heard about with Sam, we heard that Dr Sturgeon was substantially involved in providing guidance around Sam's assistance in the classroom environment.  Would you expect his views to be taken into account in identifying adjustments?

MR POTTER:  Yes.
 

MS BENNETT:  What if there's a difference of opinion between, say, a Principal and a psychologist about what's appropriate for the child?

MR POTTER:  The Principal has ultimate responsibility to make a decision.

MS BENNETT:  And so the Principal is free to disregard the therapist's opinion?

MR POTTER:  In practice, that would be unwise.  I would not --- in my experience as a Principal I would certainly always take on advice experts had been referred or I had been asked or had asked to talk with.

MS BENNETT:  All right.  Well, can I take you to a document, Mr Potter.  It's NSW.0029.0005.0211.  I emphasise, Mr Potter, I don't suggest that you had any role in drafting this document.  It's a document that was produced under notice, directed to the New South Wales Department of Education, and I understand it has come from the school in question itself.  And I would like to take you to page point 0218 --- thank you, Operator --- which is the third page from the end.

MR POTTER:  You indicated I had a role in drafting that document?

MS BENNETT:  No, you did not, as I understand it.

MR POTTER:  No, that is right.  You said I did.

MS BENNETT:  I don't think you've seen this document before this Royal Commission.  I understand that you've not.  Is that right?

MR POTTER:  That's correct.

MS BENNETT:  Okay.  Well, I want you to review it as you see necessary, but from my review, the first column sets out Amy's complaint directed to the conduct of the school.  The second column appears to be the school's response and the third column are comments or notes.  Now, the complaint articulated by Amy about Sam is:

We have consistently found that information discussed with the principal in meetings, eg the therapists, suspension resolution has not been passed on to the staff.

The response from the school, and if the Operator could enlarge this part of the table, the middle column first line:

What information?  What evidence?  How does she know?  Perhaps Amy is referring to suggestions made by therapists which were deemed by the school, after LST ....

That is "learning support team":
 

.... co ordinator and classroom teacher consultation to not be 'Reasonable'?  Other than that all other information is passed on.

Now, what would guide a Principal's decision about what information should be passed on and what should not be passed on?

MR POTTER:  I can't speak to that because I don't know the context of the school in terms of this document.

MS BENNETT:  All right, you would agree with me, wouldn't you, that it appears that the author of this document is saying that there is information that was proffered by therapists, that was not passed on because the school deemed it to not be "reasonable".  Would you agree with that?  That's what it appears to say?

MR POTTER:  Yes.

MS BENNETT:  Is that consistent with your expectation about how a school would behave?

MR POTTER:  Again, I don't know the full context so I'm finding --- I'm unable to comment on it.

MS BENNETT:  Well, I think you said earlier that you would be surprised if recommendations from therapists were not acted upon.  Would you be likewise surprised if information provided by them were not passed on?

MR POTTER:  I would expect that information would be considered that had been provided to the school.

MS BENNETT:  Yes.  And what guidance would a Principal, for example, obtain from the Department about what is reasonable to pass on and what is reasonable to hold back?

MR POTTER:  The Principal could take advice from the learning support team, the school counsellor, and also officers within the Department's local office, who would be --- have expertise in that area.

MS BENNETT:  And does the Department provide guidance to Principals about how to make that decision?

MR POTTER:  If requested.

MS BENNETT:  So you don't have a policy document that would assist Principals to make that decision on their own?

MR POTTER:  I can't answer that.  I need to take that on notice as to whether there  
are other documents that would provide that support.

MS BENNETT:  All right.  Would you accept, Mr Potter, that identifying what's reasonable is a matter of considerable discretion?

MR POTTER:  Yes.

MS BENNETT:  And it's a question about which reasonable minds could differ, couldn't they?

MR POTTER:  Yes.

MS BENNETT:  And how is a Principal to resolve that dispute?

MR POTTER:  Through consideration and advice.

MS BENNETT:  All right.  And then is there any central repository that audits those decisions, for example?

MR POTTER:  Not that I'm aware of.

MS BENNETT:  So is it possible, Mr Potter, that for example, one school a Principal might take a particularly broad approach of what constitutes a reasonable adjustment, and another school might take a particularly narrow approach as to what constitutes a reasonable adjustment?  Is that possible?

MR POTTER:  That would be possible.

MS BENNETT:  And so wouldn't a student with a disability face a radically different experience at those two schools?

MR POTTER:  That would be possible.

MS BENNETT:  And is that the way that the system should work, Mr Potter?  Shouldn't there be a degree of consistency across schools?

MR POTTER:  There would be a strong expectation that all adjustments that were needed for a student to be able to operate within a mainstream class would be taken into account.

MS BENNETT:  Yes, but I think you've --- is it satisfactory to you, Mr Potter, that the quality of a student's education might depend on something as subjective as a Principal's view of what constitutes "reasonable"?

MR POTTER:  I think we do our best with challenges that are before us, and the ways in which schools respond to those challenges may well be different, depending on experience and understanding.  But my expectation is that if there needed to be  
support, that support would be requested.

MS BENNETT:  All right.  Well, I'll come back to that one area.

I just want to understand if there is an avenue by which a parent can appeal a decision about what is reasonable to provide it as an adjustment for their child.

CHAIR:  Just before --- sorry yet again to interrupt, but just before we get to that process, the document to which you've been taken, Suspension and Expulsion of School Students Procedures 2011, I believe the version we've got is that which was in force in 2016.  Is that right as far as you are aware?

MR POTTER:  That's right.  Yes.

CHAIR:  And that's the current version?

MR POTTER:  Yes.

CHAIR:  4.6 says:

When dealing with a student with a disability consideration must be given to the requirements of the Commonwealth Disability Discrimination Act .... the Disability Standards For Education 2005 [which are in fact made pursuant to the DDA] and the [New South Wales] Anti Discrimination Act ....

Are you aware that the Disability Standards For Education contain detailed provisions relating to making reasonable adjustments?

MR POTTER:  Yes.

CHAIR:  Are they referred to in the document we've just been discussing?

MR POTTER:  I'm not aware if they are or not.

CHAIR:  I think you will find they're not.  Does that not mean that for people who are being asked to make the decisions at local level, the Principals, are not told that there are in fact objective criteria that by law must be taken into account in determining whether reasonable adjustments have been provided?

MR POTTER:  My understanding is that school staff would be aware of those documents and would take the information into account.

CHAIR:  And how would they be aware of that?

MR POTTER:  Through their training.

CHAIR:  Sorry, if the official document from the New South Wales Department of  
Education doesn't refer to it, how would they be expected to know?  I assume they're not lawyers?

MR POTTER:  No.  But in our schools we have Learning and Support Team, and the Learning and Support teacher in the school is regarded as the person who would provide advice around supporting students with additional learning needs and disabilities.

CHAIR:  Is regarded by whom?

MR POTTER:  By the school and by our system.  Every student under every school initiative, Learning and Support teachers were established in schools as the specialist educator and the instructional leader around managing students with disabilities and additional learning needs.

CHAIR:  And how do we know that those officials or persons are familiar with the standards under the Disability Discrimination Act and understand that they have the force of law?

MR POTTER:  I can't answer that.

CHAIR:  Thank you.  You can take my apology as read, Ms Bennett.  I won't keep making it.

MS BENNETT:  Chair.  All right, you heard from Amy this morning about Sam's account of being in the planning room.

MR POTTER:  Yes.

MS BENNETT:  Is that kind of placement considered an adjustment?

MR POTTER:  My experience as a Principal of a planning room is a place where students can go with support of a teacher to talk about incidents that may have occurred in order for them to understand what had happened, why it happened and what they can do.  It is about planning to make things better.  It is a restorative practice.

MS BENNETT:  So let me understand.  Your evidence is the planning room is somewhere that someone like Sam could go to understand what they had done wrong?

MR POTTER:  He could be asked to go there, yes.

MS BENNETT:  And for what purpose would be your understanding?

MR POTTER:  Well, planning room is just exactly as it says, it's to work through a plan of understanding of the action, and what might have been a better way to  
achieve whatever was hoped to achieve through that action.

MS BENNETT:  So for Sam, you would expect that he would go to the planning room so that he could talk through why he had reacted in the way that he had to stimulus, for example?

MR POTTER:  That would be my view of what I had in my planning room as a Principal.

MS BENNETT:  All right.  And would it be inappropriate for the planning room to be used for a period longer than, say, 10 or 20 minutes?

MR POTTER:  I can't answer that because it would depend on how the discussions went, what happened.  You know, that's --- I can't answer that one.

MS BENNETT:  All right.  So in your experience you could expect a child to remain in there until they could demonstrate some understanding of their behaviour; is that right?

MR POTTER:  I think you’re stretching it a little bit by saying they would remain in there until they understood.  You need to take into account the functioning of a student and also the capacity of the teacher in that room to talk through the issues with that student.

MS BENNETT:  All right.  So let me just unpack that for a moment.  Is your suggestion there that the teacher might need some time so that they can process the way they need to interact with a child like Sam?

MR POTTER:  No.  It would be around how the process would take in order to work through it in a way that was meaningful.

MS BENNETT:  All right.  So on that understanding, has something gone wrong if a student like Sam is sitting there alone?

MR POTTER:  I'm not aware of what happened in that planning room.

MS BENNETT:  No, no.  I accept that.  I'm asking you the hypothetical question: if Sam is sitting alone, has something gone wrong in the way things should be operating?

MR POTTER:  In my experience as a Principal, I would not have a student sitting there alone.

MS BENNETT:  You would not?  I'm sorry?

MR POTTER:  No, I would not, in my experience as a Principal.

 
MS BENNETT:  Thank you.  Now, did you hear the evidence of Mr Armstrong yesterday?

MR POTTER:  Was that the gentleman from RMIT at the end of the day?

MS BENNETT:  Yes.

MR POTTER:  Yes, I did.

MS BENNETT:  He talks about behaviour management strategies.  Are they strategies that are implemented across New South Wales schools?

MR POTTER:  They are implemented as what we refer to as Positive Behaviour for Learning, and they are apparent in some schools throughout New South Wales.

MS BENNETT:  Are you able to estimate to the Commissioners the percentage of schools that embrace that philosophy?

MR POTTER:  No.

MS BENNETT:  I don't need a very precise number.

MR POTTER:  No.  It would only be a guess, and on that basis I would be reluctant to put out into the record anything that I wasn't sure had any degree of accuracy.

MS BENNETT:  I understand that.  What about, Dr Armstrong talked about functional behaviour assessments or behaviour assessments carried out by staff to determine the function of behaviour.  Is that --- the question I would like to ask you, Mr Potter, is premised on Dr Armstrong's evidence, which was that a child like Sam, their behaviour needs to be understood as an attempt at communication or as a function of their distress.  Would you accept that analysis?

MR POTTER:  Yes.

MS BENNETT:  And so is the notion that you should observe the child to determine the function of their behaviour a concept that you would embrace?

MR POTTER:  We have functional assessment processes in our schools to determine the level of functioning of students who may not necessarily have a disability or might have a different diagnosed disability.  That function of the process is in our schools.

MS BENNETT:  I think we might be at cross purposes.  A functional behaviour assessment, as I understood the evidence of Dr Armstrong, is an assessment or a test to determine the function of behaviour, as opposed to the level of the functioning of the child, if that is a meaningful distinction.  So are the assessments that are being carried out in New South Wales directed at understanding the purpose of the  
behaviour?

MR POTTER:  I think there --- it is the degree to which we understand that the behaviour can be expression of a disability.

MS BENNETT:  Okay.  And does it follow ---

MR POTTER:      (overspeaking)    

MS BENNETT:  I cut you off, I'm sorry.

MR POTTER:  That's okay.  I'm finished.

MS BENNETT:  I understand that the behaviour --- I think what you've accepted is that the behaviour might be a manifestation of a disability.  The step I would like to ask you to take or to consider is whether or not that behaviour is also an attempt at communication itself.  Would you understand that to be so?

MR POTTER:  Yes.

MS BENNETT:  So a child who might be seen to run away, they might be expressing, for example, we heard from Amy this morning, fear.  Would that be consistent with your understanding of the function of a child's behaviour?

MR POTTER:  That could be, yes.

MS BENNETT:  Okay.  And similarly, a child lashing out in a way that is characterised as violent, might that not be behaviour that is seeking to communicate?

MR POTTER:  Yes.

MS BENNETT:  And is it appropriate to respond to that behaviour as a disciplinary question, as misbehaviour, or as conduct that is attempting to communicate?

MR POTTER:  It needs to be understood that there would be a purpose in that behaviour.

MS BENNETT:  Okay.  Now, I'm going to ask you a question of very high level, and we're going to talk about ---

CHAIR:  Sorry again.  Could you just expand on that answer, please, I'm not sure I understand it.

MR POTTER:  Yes.  A child who behaves in a certain way may be attempting to communicate something.  That's what I meant by that.

CHAIR:  Thank you.  And I imagine that if the child is 5 or 6 years old, that is even  
more so perhaps than a child of 12 or 13?

MR POTTER:  That could be the case.

CHAIR:  Carry on.

MS BENNETT:  Thank you, Chair.

I just would like to ask you then, Mr Potter, we went through with Amy this morning the seven notices of suspension that were issued in respect of her son Sam.  Now, four of those notices refer to his conduct as "deliberate".  Do you think that that is a helpful way to describe the behaviour of a 5 year old child with autism?

MR POTTER:  I think that that term had a different meaning, and I'm not sure what the meaning may well have been to the school as it was to the parent.  But to say that that behaviour was deliberate in the context that I think you're referring to, you mean that it was intentional and thought through.

MS BENNETT:  Yes, it is.  Is that not your understanding of that term?

MR POTTER:  Yes.  But I'm not certain that I know Sam well enough to be able to answer that in terms of reference to him.

MS BENNETT:  I understand that.  I think --- so is your evidence that a 5 year old child with autism might well be behaving deliberately when they abscond, for example, and that it's open to the principal to consider it that way rather than as a function of his behaviour?

MR POTTER:  I can't answer that in this context because I don't have a strong understanding of all aspects of the young man in --- that we are referencing.

MS BENNETT:  Well, it is a complex question, Mr Potter   

MR POTTER:  Yes.

MS BENNETT:  --- the degree of deliberateness is quite complex.

MR POTTER:  Yes.

MS BENNETT:  Now, we've heard that Dr Sturgeon's opinion was that Sam's conduct was not deliberate in the sense that you and I had been discussing the term.  Do you remember that evidence that was put before Amy?

MR POTTER:  Yes.

MS BENNETT:  So do you think it was open to a Principal to reach the contrary conclusion about the deliberateness of Sam's behaviour?
 

MR POTTER:  I think it's the responsibility of the Principal to make a decision and in respect of this decision I can't --- I don't have the broad contextual knowledge to be able to make some sort of referral to that.

MS BENNETT:  My ---

CHAIR:  How then were you in a position to decide the appeal?

MR POTTER:  Can I then refer to that appeal, if I may.  The appeal took into account the full list of adjustments that I had   that I was aware of that were in place.  But also, Commissioner, the policy states clearly that in respect of significant violence, a mandatory suspension must be in place.  And I think the school reflected on the violence in terms of their understanding of the policy, and was concerned with the obligations under a safe workplace for staff and students.

CHAIR:  But we don't know whether the school understood the concept of reasonable adjustments which you have agreed is a necessary pre condition before a suspension or expulsion can take place.

MR POTTER:  And I don't know whether the school understood that because I don't know the context or the situation well enough.

CHAIR:  And wouldn't an appeal be a very good place to find out?

MR POTTER:  Well, I took information that was collected and given to me, and on balance, I referred to the policy that made in my mind clear why the reason there needed to be a suspension, in those instances that I was referring to.

CHAIR:  All right.  Thank you.

MS BENNETT:  Well, Mr Eastcott, while we're discussing that, you say that you were satisfied that ---

MR POTTER:  Mr Potter, not Mr Eastcott.

MS BENNETT:  I'm sorry, Mr Potter, I do apologise.  Mr Potter, were you satisfied in carrying out your review that the requested adjustments were in place?

MR POTTER:  I looked at the suite of adjustments and discussed those adjustments with the person that was collecting the information on my behalf, and I was satisfied that that suite of adjustments identified a whole range of supports that were identified to be in place.

MS BENNETT:  Well, can I just take you briefly to that letter.

Commissioners, it appears at Tab 73 of Part A.  It is IND.0040.0001.0152.  I'm sorry,  
five zero are the last two digits, but I see the Operator has anticipated me.  Can I take you to the second page and penultimate paragraph on that page.  If I could ask the Operator to enlarge that paragraph.  The penultimate paragraph on the second page.  I'm sorry, perhaps I could try again.  I've been unclear.  Could I have the document IND.0040.0001.0150.  My apologies.  And the second page, penultimate paragraph.  It says there:

I note that you have raised concerns that not all aspects of support and accommodations listed in Mr Eastcott's letter have been effectively implemented.  I would ask that you raise these matters with [the principal] in the first instance and if you are not satisfied with the outcome that you contact Mr Eastcott ....

Now, Mr Potter, had you satisfied yourself that the adjustments were in place, why were you telling Amy to talk to the principal about it?

MR POTTER:  I had seen the whole list of adjustments that were in place, and my indication there is that our policy and understanding at the time was that if the parent was not satisfied with what was happening in the school in the first instance that they would go to the school, and in the second instance that they would then go to the Director of the school.  However, I acknowledge that in our strategy that we are reviewing that because it is, on my reflection, that it may well have been better for someone independently to be able to give her that support.

MS BENNETT:  Yes.  So would you add that to the list of reflections in your statement of things that could perhaps have been done better, in the case of Sam?

MR POTTER:  Yes, I would.

MS BENNETT:  Thank you.  I'd like to return ---

CHAIR:  While we're there, Mr Potter, as I read this letter of 16 November and I look at the first complete paragraph on page 2, it states:

The school indicated that they had two adults who witnessed the [headbutt] .... section 6.1.4 [says] principals must suspend immediately consistently with these procedures .... any student who is physically violent ....

From the information available to me, I consider that the principal was required under the department's policy to place Sam on a long suspension.

That reads, doesn't it, as though the critical factor was the fact of physical violence and then the Principal had no choice?

MR POTTER:  That's correct.

CHAIR:  But that's not the position, is it?  The position was there had to be a finding  
by you of reasonable accommodation being in place before that policy could be applied?  That's correct, isn't it?

MR POTTER:  Well, in the letter that Mr Eastcott sent back to the parents in respect of his appeal, it identified all those reasonable adjustments that were in place.  And my consideration of it was that they were in place, but that the focus of the school at that point was trying to ---

CHAIR:  That's not what your letter says, is it?  The letter doesn't say you're satisfied that they were in place.  Your letter says, if they're not in place, go away and talk to somebody else about it.

MR POTTER:  Well, that was allowing the parent, if she did believe that that was the case that those adjustments were in place, she needed to raise those.

CHAIR:  I see.

Yes, go ahead.

MS BENNETT:  So just to pick up on the questions the Chair has asked you, is it the case that it is, to use a legal term, an absolute liability moment for a child, a child who engages in violence will be suspended, and can that position be changed at all?

MR POTTER:  Serious violence, and under that policy there was no discretion.  Under the new disability strategy, the new behaviour policy, there is the opportunity for discretion that wasn't in the previous policy.

MS BENNETT:  All right.  Why, Mr Potter, has discretion been added?

MR POTTER:  I think, because --- well, I would only be guessing.  I can't answer that.  I don't know.

MS BENNETT:  Do you have any thoughts about why it might be the case?

MR POTTER:  To enable schools to have the opportunity to put other processes in place, rather than having to resort to a suspension.

MS BENNETT:  If a school --- on your strict liability approach, Mr Potter, if a school formed the view that suspension would disproportionately harm the child because of their disability, they would still have to impose it.  Am I right in understanding that?

MR POTTER:  I think in this case the issue was connected with a safe workplace, and that was the overriding consideration in terms of the suspension.

MS BENNETT:  Okay.  Just to return to my question, if the principal formed the view that a suspension would cause disproportionate harm to a child with a  
disability, they would be required under that policy to impose it.  Have I understood that correctly?

MR POTTER:  I think there was an understanding that the Principal determined the length of that suspension so that it took into account any impact that that could have.  And even though it's classified as a long suspension, it may well be that that suspension doesn't have to be for the maximum period of time allowed.

MS BENNETT:  Okay.  So as I understand your evidence, and just make sure I'm being fair to you, Mr Potter, the only discretion permitted to a Principal to take into account the effect on a child with a disability is the length of the suspension, not the suspension itself.  Have I understood that correctly?

MR POTTER:  And the seriousness.  It talks about serious violence.

MS BENNETT:  Yes, so let's assume --- let me break that down.  What is serious violence?

MR POTTER:  Well, in this instance that I reviewed, the coming up behind a student who is working ---

MS BENNETT:  Just generally speaking, how is someone to recognise serious violence as opposed to violence?

MR POTTER:  I think that would be determined by the impact on the victim and also any other impacts that were considered.

MS BENNETT:  Now we keep using this phrase "violence" and it connotes to me a degree of intentionality.  Would you agree with that?

MR POTTER:  No.

MS BENNETT:  So if I mistakenly bumped someone, isn't that different to me shoving them?

MS FURNESS:  Commissioner, might I object at this stage.  It's not clear to me whether the witness is being asked about the expulsion policy which refers to physical violence or he is being asked about violence in some other context.

CHAIR:  I think we're in the context of suspension but I will ask Ms Bennett to make it explicit.

MS BENNETT:  Yes, thank you.  I'm really trying to explore the distinction that Mr Potter raises when he says in instances of violence there must be a suspension.  Or perhaps, more accurately, in the instances of serious violence, there must be suspension.  That's what I've understood Mr Potter's evidence to be.

 
Is that correct, Mr Potter?

MR POTTER:  That's correct in terms of the policy.

MS BENNETT:  What I'm trying to understand is whether or not that violence involves a concept of intentionality.  What I'm trying to draw out, Mr Potter, is, isn't there a difference between something that causes physical harm, and violence that causes physical harm?

MR POTTER:  Yes.

MS FURNESS:  Commissioner, might I --- I'm sorry to interrupt, but if indeed the questioning is about the policy, the policy defines "physically violent" and deals whether or not it's resulting in injury.  If this is the topic, might I ask that the witness be directed to Section 6.1.4 of the policy which deals with the issue about which he is being questioned?

CHAIR:  You're referring, are you, Ms Furness, to the first paragraph, subparagraph of 6.1.4 of the document Suspension and Expulsion of School Students Procedures 2011, that is the paragraph that refers to physical violence?

MS FURNESS:  Thank you, Commissioner.  It deals with resulting injury.

CHAIR:  There is some interference.  Somebody I think is not muted, their microphone, who is not speaking.

Would you mind repeating that?

MS FURNESS:  The short answer is yes, Commissioner.  It is that paragraph.

CHAIR:  I'm not sure that Ms Bennett needs to do that at this point.

So I would suggest, Ms Bennett, ask the question again, and it may be sensible to take Mr Potter to 6.1.4, but you can ask the question that you were asking and then direct his attention to that paragraph.

MS BENNETT:  Thank you, Chair.

Mr Potter, what I'm trying to understand is whether or not a child, whose behaviour is an attempt at communication, is behaving violently in the way that is encompassed within this policy.

CHAIR:  Mr Potter, if you wish to refer to 6.1.4, you may do so.  I don't know whether you've that in front of you but perhaps Ms Bennett could read it out for you.

MS BENNETT:  Thank you, Chair.  It's presently on the screen and 6.1.4 reads relevantly:
 

.... any student who:

....

  is physically violent:  Any student who is physically violent, resulting in injury, or whose violent behaviour seriously interferes with the safety and wellbeing of others, needs to be suspended immediately.  The matter must be reported to the School Safety and Response hotline on 1300 363 778 where advice will be provided on managing and reporting the incident.

CHAIR:  Do you remember the question?  Yes, Mr Potter?

MR POTTER:  Can you repeat the question, please.

MS BENNETT:  Is behaviour violent where it is an expression of communication?

MR POTTER:  It can be.

MS BENNETT:  Okay.  So when it is not intended to harm but has that effect, that is captured within the policy?

MR POTTER:  That's my understanding.

MS BENNETT:  So accidental conduct would cause the suspension of a student if it resulted in serious physical harm?

MR POTTER:  Serious physical harm.

MS BENNETT:  Yes.  Accidental conduct which resulted in serious physical harm would result in the suspension of that student, necessarily?

MR POTTER:  In the letter of the law of the policy, if there was serious harm or impact, yes, I think that's what it would be.  That would be my view, rightly or wrongly.

MS BENNETT:  Right.  And so the intentionality behind the conduct plays no role at all?

MR POTTER:  Not in terms of the letter of the law as it sits there at 6.1.4.

MS BENNETT:  It's not a law, Mr Potter, it's a policy under the New South Wales Department that created it.

MR POTTER:  Thank you.  In respect of that policy.

MS BENNETT:  Yes.  Do you see any potential for the policy to operate in a way  
that disproportionately impacts students with a disability when understood that way?

MR POTTER:  Yes.

MS BENNETT:  Do you think that's right, Mr Potter?

MR POTTER:  I think that's the purpose of the new behaviour strategy, particularly to address something like that, and I think that that's where we are going as a system.

MS BENNETT:  Well, perhaps we can return to my question.  Do you think it's right that a policy of the New South Wales Department disproportionately affects children with a disability?  Should that be so?

MR POTTER:  No policy should have an unintended consequence and therefore it needs to be reviewed.

MS BENNETT:  Yes.  Thank you, Mr Potter.

Chair, I was instructed to request a break at some stage between now and the next half hour.  This is a convenient moment.  It might be slightly early, but it presents a useful --- would this be a convenient time to take a brief break?

CHAIR:  Certainly.  How long should we break for, 20 minutes?

MS BENNETT:  That is appreciated.

CHAIR:  Well, we will resume at Sydney time 3.55, which is 2.55 in some other parts of the country.

ADJOURNED    [2.37 PM]

RESUMED    [3.00 PM]

CHAIR:  Yes, Ms Bennett.

MS BENNETT:  Thank you, Chair.

Mr Potter, I would like to return, we were talking about adjustments earlier this afternoon.  Now, some of those adjustments require funding, don't they?

MR POTTER:  They can.

MS BENNETT:  Yes.  Not all.  Some are just a teacher changes the way that they carry out their class, and some require actual money to be spent.  Is that fair?
 

MR POTTER:  Yes.

MS BENNETT:  Okay.  I would like to discuss with you about how --- the relationship between funding and adjustments, okay.  So I think in your statement you identify a number of sources of funding that might be relevant to a student with a disability, both because they're a student and because they have a disability.  I just want to make sure, Mr Potter, that I understand your evidence around this.

So it is the base school allocation that all students in New South Wales receive, that's at paragraphs 74 and 75 of your statement.  That's right, isn't it?

MR POTTER:  All schools receive.

MS BENNETT:  Yes, all schools receive that funding and that's based on a per capita basis, and it's the same amount per student, is that right?

MR POTTER:  Yes.  That's my understanding.

MS BENNETT:  Yes.  You then talk about equity loadings.  Now, that's another ---

MR POTTER:  Yes.

MS BENNETT:  --- amount which a school receives, and it receives that money based on the number of students enrolled who fall within particular categories.  Is that fair?

MR POTTER:  Yes.

MS BENNETT:  And one of those categories is disability; is that right?

MR POTTER:  Yes, that's correct.

MS BENNETT:  Now, does a child need formal disability verification to receive that equity loading amount?

MR POTTER:  No.  The school receives it, not the child     (overspeaking)    

MS BENNETT:  I'm sorry, yes.  Sorry.  Yes.  So does the child need a particular verification for their school to receive that equity loading?

MR POTTER:  No.

MS BENNETT:  Okay.  So how does the Department decide that a particular amount under that equity loading category should be allocated to a school?

MR POTTER:  On a formula basis.
 

MS BENNETT:  Okay.  And what are the inputs into that formula?  Like how do you know when you've a number of children in your school that will attract that funding for the school?

MR POTTER:  It can be on the basis of socioeconomic status of the school, and also around data that talks about the prevalence of mental health in different areas.  So it's just a general rule.

MS BENNETT:  I see.  So that attaches to an area, not to an individual --- a number of individuals students at a particular school that fit into that category.

MR POTTER:  That's my understanding.

MS BENNETT:  Thank you.  Then the third category is a category you describe as "targeted funding"; is that right?

MR POTTER:  That's correct.

MS BENNETT:  And that is funding that goes to a school where that school has enrolled a student with what you call a confirmed disability; is that right?

MR POTTER:  Yes.  It's one of the areas.

MS BENNETT:  Yes.  Now, you exhibit a document that identifies the confirmed disability criteria and that is NSW.0029.0015.1283.  That, Commissioners, is at Tender Bundle D, volume 1B, 28.

MR POTTER:  Can you refer to that number again, please?

MS BENNETT:  I think it's exhibited to your statement, but it's NSW.0029.0015.1283.

MS FURNESS:  Might I just say to the witness that it's Tab 17 in annexure to his statement.  It might be easier for him to find.

MR POTTER:  Thank you.  Thank you.

MS BENNETT:  Thank you.  I would just like to understand that this document sets out eight categories of disability and what appears to be a general category.  Now, I would just like to ask you a question about this general category.  Does that category --- it appears --- it's the last entry on page 2.

MR POTTER:  Yes.

MS BENNETT:  And it says that:

 
Where there is evidence that a student has a significant disorder or malfunction that is not adequately described by one or more of the above criteria and the condition is impacting greatly on educational outcomes, the Coordinator Student Counselling and Welfare together with the Coordinator Special Education will consider all available documentation and make a determination on a case by case basis.

That's a general category, is it?

MR POTTER:  Yes.

MS BENNETT:  And so that permits a school to receive funding for a child with a disability that does not fit into the other eight categories; is that right?

MR POTTER:  Yes, that's correct.

MS BENNETT:  And is that intended to allow for flexibility in the allocation of funding for children with a disability?

MR POTTER:  Yes.

MS BENNETT:  Yes.  Are you able to comment, Mr Potter, on how widely the general category is used?

MR POTTER:  No, unfortunately I'm not aware of that.

MS BENNETT:  That's okay.

MR POTTER:  I have no idea.

MS BENNETT:  Does the Department retain records about which category attracts funding?

MR POTTER:  Yes.

MS BENNETT:  Okay.  And which system is that information stored on?

MR POTTER:  I would have to take that on notice.

MS BENNETT:  All right.  We might return to you on that.

Now, you talk about the targeted funding category at about paragraph 86 of your statement.  And you talk about integrated funding support.

MR POTTER:  Yes.

MS BENNETT:  Now, is integrated funding support a form of targeted funding?
 

MR POTTER:  Yes.

MS BENNETT:  Is it the only form of targeted funding?  Do they mean the same thing?

MR POTTER:  It is one form of targeted funding, yes.

MS BENNETT:  Okay, so integrated funding support is funding a school might receive under the targeted funding category, but they could receive other funding under the targeted funding category; is that right?

MR POTTER:  I would have to check that.

MS BENNETT:  Okay.

MR POTTER:  I know that it is --- the integration funding support is, as I understand it, the major form of funding in that category, but there may be others.

MS BENNETT:  Okay.  Now, you talk in your statement about integrated funding support being a way of accessing what you call SLSO support, which I might refer to   what does SLSO stand for?

MR POTTER:  It stands for School Learning Support Officer, previously known as a teacher's aide.

MS BENNETT:  So is targeted funding, integrated funding support, the only way a school can fund a teacher's aide?

MR POTTER:  No.

MS BENNETT:  Can you tell the Commissioners the ways that a school can fund a teachers' aide?

MR POTTER:  Can use other funding that is available in the school, from the base allocation, or from public schools.

MS BENNETT:  Is the IFS intended to be --- intended to provide all of the funding for teachers' aides?

MR POTTER:  It's not to say that it's intended to fund all of it - it's intended to support the student - if other funding is needed it would be at the discretion of the school to determine.

MS BENNETT:  Okay.  We've talked about reasonable adjustments.  A teacher's aide or an SLSO might be such an adjustment, mightn't it?

 
MR POTTER:  Yes.

MS BENNETT:  In fact that's a fairly common form of adjustment, isn't it?

MR POTTER:  It is.

MS BENNETT:  And a teacher's aide, as I understand it, works at the direction of the classroom teacher?

MR POTTER:  Correct.

MS BENNETT:  Do they have any specific educational qualifications?

MR POTTER:  Not necessarily, but they may have.

MS BENNETT:  Yes.  Do they have any --- of necessity, do they have any disability qualifications?

MR POTTER:  Not necessarily, but they may have.

MS BENNETT:  Yes.  And they effectively assist the classroom teacher where that classroom teacher needs help where there might be students in the classroom with special needs.  Is that a fair summary?

MR POTTER:  Yes.

MS BENNETT:  And it's the classroom teacher who is responsible for directing that teacher's aide about how they will carry out their duties; is that right?

MR POTTER:  Yes.

MS BENNETT:  And so a teacher's aide is not specifically assigned to any child?

MR POTTER:  That's correct.  That can be.  But references a student obviously.

MS BENNETT:  Okay.  Can you just explain that to the Commissioners?  So the classroom teacher could decide that a teacher's aide should work exclusively with one child, is that right?

MR POTTER:  Yes.

MS BENNETT:  Okay.  Is that a decision for the classroom teacher or the principal?

MR POTTER:  That would be the decision of the classroom teacher who may or may not take advice.

MS BENNETT:  Take advice from who?
 

MR POTTER:  From the learning support team, from a person within the school, the school counsellor.  So there's a number of sources of advice within our schools and external to our schools.

MS BENNETT:  And so it's the classroom teacher who will decide the amount of aide support a child needs?

MR POTTER:  No, that's not correct.

MS BENNETT:  Okay.

MR POTTER:  The decision in terms of how much aide support will depend upon the decision that the principal would make in reference to the funding available or additional funding that might be deemed to be needed.

MS BENNETT:  So the principal will make a decision about how much funding --- sorry, let me come back.  As I understood your evidence earlier, the classroom teacher will decide how to allocate their teacher's aide time; is that right?

MR POTTER:  Within the classroom, yes, that's correct.

MS BENNETT:  In the classroom.  Once a teacher's aide is assigned to a classroom, the classroom teacher has responsibility for determining how much time will be spent with any particular child?

MR POTTER:  Yes.

MS BENNETT:  Okay.  And does the classroom teacher have to take into account how much funding is attached to that child in making that decision?

MR POTTER:  No.  The amount of time that the School Learning Support Officer would be in the classroom with the teacher would be determined by the school.

MS BENNETT:  Okay.  I see.  So there's two questions here.  First is: does the classroom get a teacher's aide?  Then, once the classroom has a teacher's aide, it's up to the teacher how they're deployed.  Is that fair?

MR POTTER:  If a student in the class has the integration funding support provided for that student.

MS BENNETT:  Okay.  So if there are two students with a disability in a classroom and one has funding but both have a disability ---

MR POTTER:  Yes.

MS BENNETT:  --- can the teacher decide that both should be supported by the  
teacher's aide?

MR POTTER:  Yes.

MS BENNETT:  It's based on the teacher's assessment of need, is that fair?

MR POTTER:  Yes.

MS BENNETT:  Okay.  So the classroom teacher doesn't need to know how much IFS funding is attached to any child in the classroom to make that decision, do they?

MR POTTER:  No.

MS BENNETT:  Do the parents need to know how much funding is attached to their child to make the kinds of adjustments they would ask for?

MR POTTER:  My experience as a principal is that the parent would know because the parent would be part of the discussions around the use of that integrated funding support.

MS BENNETT:  Why does the parent need to know about the amount of IFS funding that goes to the school?

MR POTTER:  They don't need to know.  In my instance as a principal, I would have that as part of the discussion with the parent so the parent knew what I was doing in terms of leading my school.

MS BENNETT:  Okay.  Well, if a student brings funding   sorry, let me rephrase that.  If there is a student with a disability who has an IFS allocation, there is a teacher's aide which the principal has decided because of that funding to employ in a particular classroom, the classroom teacher can decide how that teacher's aide support is utilised.  That's right, isn't it?

MR POTTER:  Yes.

MS BENNETT:  And it doesn't matter that other students are not funded?

MR POTTER:  No.  I'm not quite sure what you're getting at.  Could you just explain that?

MS BENNETT:  Well, what I'm trying to understand is, can a child only expect so much teacher aide support as corresponds with their IFS funding?

MR POTTER:  Not necessarily.  They can receive more time than would be commensurate with the amount of time that would be allocated in that integration funding support.

 
MS BENNETT:  Yes.  And that would be based on their need, wouldn't it?

MR POTTER:  And availability of funding in the school.

MS BENNETT:  Well, that's really the nub of my question, is do we start, Mr Potter, from the proposition of identifying the child's need before we go to the question of can it be funded?  Is that the sequence?

MR POTTER:  Yes.

MS BENNETT:  And should the amount of IFS funding, is that an answer to what even is a reasonable amount of teacher aide time?

MR POTTER:  Depends on the disability confirmation, the access request which is put forward by the school in order to seek funding.

MS BENNETT:  I had understood it was up to the classroom teacher.  Is that not right?

MR POTTER:  No, you're talking about the funding coming into the school or are you talking about the use of the teacher's aide or the School Learning Support Officer in the classroom     (overspeaking)    

MS BENNETT:  The teacher's aide in the classroom.

MR POTTER:  Sorry.

MS BENNETT:  No, no.

Once the teacher's aide is in the classroom, it's up to the classroom teacher how much time that aide gives to any student?

MR POTTER:  Yes.

MS BENNETT:  Let me illustrate by reference to an example.

MR POTTER:  Yes.

MS BENNETT:  Can I take the witness to NSW.0029.0005.0607.

Now, Mr Potter, this is another document in the category of documents that I don't expect you to have seen before   

MR POTTER:  No.

MS BENNETT:  --- before this Royal Commission.

 
Again, it was produced under notice and we understand was generated by Sam's school, and it lists a number of reasonable adjustments and in the column on the left it says:

At the school we can .... [do the following things].

And in the second column it says:

.... we can't [do these things].

I would like to draw your attention across the page, on the second page.  It says   well:

All of the above is subject to funding support received from the Department of Education.

Now, Mr Potter, is that right?  Is the school obliged to provide adjustments only in respect of funding support received from the Department of Education?

MR POTTER:  No.

MS BENNETT:  Right.

MR POTTER:  Sorry ---

MS BENNETT:  So if the school is proceeding on that basis ---

MR POTTER:  Can I clarify that, please.

In terms of it does not just have to be integration funding support, but ---

MS BENNETT:  I understand that.

MR POTTER:  --- but in terms of all of the Department of Education funding, the school can use its discretion.

MS BENNETT:  Well, it's a little bit different to that, Mr Potter.  They are obliged to provide reasonable adjustments   let me put it another way.  They are obliged to provide adjustments unless it is unreasonable to expect them to do so.  Is that fair?

MR POTTER:  Can you say that again, please.

MS BENNETT:  You accept that a school has an obligation to provide reasonable adjustments for students?  Is that fair?

MR POTTER:  Yes.

 
MS BENNETT:  Let me put that another way.  A school is obliged to provide adjustments unless it would be unreasonable to expect them to do so?

MR POTTER:  It's very difficult for me to be able to answer that not knowing what you are referring to as unreasonable.

MS BENNETT:  Well, I'm not yet referring to anything.  What I'm asking you, Mr Potter, is really your evidence before was you start from the question of the needs of the child, and you make the adjustments that support those needs.  Is that a fair summary of your evidence?

MR POTTER:  Yes.

MS BENNETT:  And would you accept that a school is obliged to do that?

MR POTTER:  Yes.

MS BENNETT:  And the only limit on that, that I have heard from you, Mr Potter, and correct me if I'm wrong, is if it would be unreasonable.  Is that fair?

MR POTTER:  That's --- determining unreasonable is very difficult, and to say that it would be unreasonable, you would either need to look at what was offered and what was expected and what was able to be done at a school.

MS BENNETT:  I think I embrace that, Mr Potter.  So it wouldn't be so simple to say, let's say if the funding --- if we receive funding support from the Department of Education in relation to this child, that wouldn't be the right approach, would it?

MR POTTER:  It would be the only source of funding the school could use.

MS BENNETT:  Well, I thought, Mr Potter, your evidence before was they could use whatever funding they had, not just funding ---

MR POTTER:  Yes, I did say that.  That's what I was referring to just then.

MS BENNETT:  All right.  So they could use --- well, I'm sorry, perhaps my question wasn't clear.

Is it fair to say that a school should not limit itself to funding connected with a particular child?

MR POTTER:  It's fair to say it doesn't have to.

MS BENNETT:  Well, okay.  I would like to test that with you, Mr Potter.  Because in what circumstances would the school limit the adjustments it would otherwise provide because, only because of the amount of funding attached to that child?

 
MR POTTER:  Could you say that again, please?  In what circumstances?

MS BENNETT:  Well, let me again illustrate by reference to this document.  If I could go to the first page of that document and the second, that's NSW.0029.0005.0607.  And the second box, so this is under the heading:

At the school we can ....
....
Provide an SLSO for a number of hours that district office provides funding for.

MR POTTER:  Right.

MS BENNETT:  Is that right, can the school provide funding for more hours than the District Office provides funding for?

MR POTTER:  Yes.

MS BENNETT:  All right.  So to the extent that this suggests that a school could not make that decision, that would be incorrect.  Is that fair?

MR POTTER:  I don't know the context of the school to know why they would make that statement.

MS BENNETT:  Yeah, I accept that, I don't seek you to rule on this in general, but as a statement of principle and policy, this is incorrect, isn't it?

MR POTTER:  That's --- yes, that's correct.

MS BENNETT:  Yes.  Sorry, just so I'm clear, it is correct that this document is incorrect?

MR POTTER:  Yes.  That's correct.

MS BENNETT:  Thank you, Mr Potter.  And would it concern you, Mr Potter, if a school did proceed on that basis?

MR POTTER:  Not necessarily, without knowing the full context of the school and the full finances that would be available to be used within that school, and I would not be expected to have that information.

MS BENNETT:  No.  I understand that.  All right.

Now, returning to that box for a moment, I'm sorry to the Operator who has now been asked to bring it up for the third time, if we could go to the fourth box and that refers to the school can:

 
Restrain Sam for his safety and .... others .... and .... [use] 'reasonable force'.

Now, that's listed as a reasonable adjustment.  Is that a reasonable adjustment, Mr Potter?

MR POTTER:  No, in my review I indicated the use of the word "restrain" was inappropriate.

MS BENNETT:  And what's inappropriate about it, Mr Potter?

MR POTTER:  The connotation of the word "restrain" is such that --- to me it denotes force, undue force.  Where it's talking about the safety of the student, that would --- I would refer to that if a student was going to walk out on the road, you might take them by the hand to stop them from being hurt.  But I wouldn't call that restraining as such as it is referred to, in such context of restraint.

MS BENNETT:  All right.  Now, you recall from Amy's evidence this morning that she was distressed by the imposition of suspensions on her son Sam.  Do you remember that evidence?

MR POTTER:  Yes.

MS BENNETT:  Now, this document is dated 1 March 2016, so it is a smidge over one month into Sam's primary school career, and he is 5 years old at the time.  And in that box it says:

At [the primary] School we can ....
Suspend Sam from school, in accordance with our school discipline policy .... for 'Aggressive Behaviour' or 'Consistent Disobedience'.

Now, Mr Potter, does it concern you that so soon into the child's life at school that is being raised as a response to his behaviour?

MR POTTER:  Yes.

MS BENNETT:  Why does it concern you, Mr Potter?

MR POTTER:  When I read that document, I saw that as a list of, this is what we can do and can't do, in terms of expectations, but for that to have happened within a month within school, I'm not sure of the purpose of it, and so therefore it's difficult to make comment when not knowing the purpose of that document.

MS BENNETT:  All right.  Well, that document was in fact --- is dated at least a week after Sam received his first notice of intention to suspend, which I think you will recall from the evidence this morning was 24 February 2016.  Do you recall that?

 
MR POTTER:  I do.

MS BENNETT:  That was very early for the school to have turned to suspension, wasn't it?

MR POTTER:  Yes.

MS BENNETT:  Do you think it was appropriate for the school to turn to suspension so early in the career of a child so young?

MR POTTER:  Without knowing the full context of the events surrounding it nor the issues within the school, I can't make comment.

MS BENNETT:  So it's your view that a 5 year old child with autism spectrum condition within their first three weeks at school could legitimately be faced with suspension?

MR POTTER:  It surprises me.

MS BENNETT:  Well, it's a very extreme position, would you agree with that?

MR POTTER:  Not necessarily.

MS BENNETT:  All right.  You think that that's within the normal range of responses of a school?

MR POTTER:  No.  But it's certainly not extreme.  You're talking about two different ends of the spectrum here.

MS BENNETT:  All right.  Does the Department maintain any records on how often children at the ages of five or six are suspended?

MR POTTER:  I would need to take that on notice.  I don't know.

MS BENNETT:  All right.  Now, Sam was suspended seven times in a 13 month period when he was aged five and six.  Does that suggest to you, Mr Potter, that suspension was working for him or not working for him?

MR POTTER:  It suggests to me that there were behaviours being demonstrated that were impacting on the safety and wellbeing of other people within the school.

MS BENNETT:  And is it fair to say that the repeated imposition of suspensions should lead us to conclude that suspensions were not ending that behaviour?  They weren't making it better for Sam, were they?

MR POTTER:  No, they weren't.

 
MS BENNETT:  And the evidence this morning was that they were causing him some distress.  Do you agree with that?

MR POTTER:  According to the mother, yes, that's correct.

MS BENNETT:  And in your experience working with a disability, you've worked with children with autism spectrum disorder was your evidence earlier today?

MR POTTER:  Yes, that's correct.

MS BENNETT:  You would be aware that structure is important for children with that condition?

MR POTTER:  Yes, that's also correct.  But can I also say, in my experience as a principal and working with students with disability, I've never come across a person with as complex behaviours as this young man.

MS BENNETT:  May I suggest to you, Mr Potter, that suspension was a fairly blunt instrument to deploy in such a complex case.  Would you agree to that?

MR POTTER:  It was a strategy that the school was using, when you call it a blunt instrument, my view is that it was a strategy that they were using, and I can't comment on how appropriate that would be within that context because I don't know fully that context.

MS BENNETT:  Well, Mr Potter, as the Chair pointed out earlier, you reviewed at least two of those suspensions and you formed a view that it was proper?

MR POTTER:  Yes.

MS BENNETT:  Isn't that right?

MR POTTER:  Yes.  Because I reviewed two suspensions only, and on the basis of the information that was before me in relation to the seriousness of the violence.

MS BENNETT:  Right.  You now have more information before you, don't you?

MR POTTER:  I do.

MS BENNETT:  Does any of that information cause you to reflect about your view of those suspensions differently?

MR POTTER:  As a principal, I would have found it very difficult to suspend that number of times.

MS BENNETT:  Yes.  Were you aware --- carrying out your review, were you aware of the number of other suspensions?
 

MR POTTER:  No, I wasn't.

MS BENNETT:  Should you have been told that, Mr Potter?

MR POTTER:  On reflection I may well have needed that information.

MS BENNETT:  And you took into account some information that was provided by the school in question.  And is it fair to say that information was not put to Amy?

MR POTTER:  No, it wasn't.

MS BENNETT:  Should it have been put to her?

MR POTTER:  She was given the opportunity to say what she wanted to say and that would, in my thinking, that was collecting information, both sides of the information.

MS BENNETT:  The school provided you with information different to the information that Amy gave you.  Is that fair?

MR POTTER:  The information that I collected from the school was around the degree of adjustments that were in place.

MS BENNETT:  Yes.  And that information wasn't provided to Amy for her review or comment, was it?

MR POTTER:  No, it wasn't, but my expectation was she would have known that, with the meetings she was having in the school and the reviews that were happening around the adjustments that were [audio distorted] for Sam.

MS BENNETT:  Could you have checked that with her?

MR POTTER:  I could have.

MS BENNETT:  Do you think you should have?

MR POTTER:  Perhaps on reflection.

MS BENNETT:  Yes.  Would you add that to the things that perhaps you might have done differently if you had your time again in the instance of Sam?

MR POTTER:  Yes.

MS BENNETT:  Okay.  Now, the core of the use of suspension in this case --- sorry, is it your understanding, Mr Potter, that under the new draft policy that New South Wales is presently considering, Sam would not have been suspended?

 
MR POTTER:  He may not have been suspended because there is discretion, and there are opportunities for schools to put in place other strategies rather than resorting to suspension.

CHAIR:  Ms Bennett, it might be helpful to distinguish; after all, there were seven suspensions and the circumstances relating to the first one no doubt were different to the seventh.  I wonder if you might not make it a little more specific so that Mr Potter can direct his attention to precisely the circumstances you're basing [audio distorted]   

MS BENNETT:  I'm indebted to the Chair.

Mr Potter, is it likely that Sam would have been suspended for 20 days?

MR POTTER:  No.

MS BENNETT:  In fact he wouldn't be under the new draft policy, would he?

MR POTTER:  That's correct.

MS BENNETT:  Now, you're aware --- your statement says that after two short suspensions there should be a review.  Is that right?

MR POTTER:  Can you refer me to that part of my statement, please?

MS BENNETT:  Yes.  I'm sure I saw it there somewhere.  Should there be a review after a number of short suspensions?

MR POTTER:  I still can't find ---

MS FURNESS:  Commissioner, I'm sorry to interrupt.  Can the witness be shown the paragraph that my friend referred to in that question, or the question should be withdrawn.

MS BENNETT:  Yes.

CHAIR:  I'm sure Ms Bennett would be delighted to do so if she could find the relevant paragraph.  So let us find the relevant paragraph and we can do that.  Maybe come back to it and somebody will be able to find the relevant paragraph.

MS BENNETT:  Yes.  Thank you, Chair.  I'm sorry, it's in the procedure document at 6.2.5.  So the suspension procedure document, which is document ID NSW.0029.0001.2769 at 6.2.5.

If the Principal decides to impose more than two short suspensions on a student in any twelve month period, the Director, Public Schools NSW must be advised.
 

MR POTTER:  Correct.

MS BENNETT:  Okay.  Did the school advise you after Sam's third short suspension?

MR POTTER:  They wouldn't have advised me because that refers to the Director.  I was the Executive Director.

MS BENNETT:  So that would have been who at the time, Mr Eastcott?

MR POTTER:  That's correct.

MS BENNETT:  And how would that notification take place?

MR POTTER:  My understanding there would be a form that would need to be forwarded to the school.

MS BENNETT:  All right.  That form, is there is a database that records that information?

MR POTTER:  I'm not aware of a database other than it being kept in at the local office.  But I would need to take that on notice as well to find that out.

MS BENNETT:  All right.  What happens when a notification like that is received?

MR POTTER:  Well, the Director would have the opportunity to ask someone from the Learning --- what was known as the Learning and Wellbeing Team, and someone who I know had significant support and connection with the school and the family already, to talk with the school around why that was the case, and to assist them in any expertise or advice that might be relevant to them.

MS BENNETT:  And do you have any idea if that occurred in the case of Sam?

MR POTTER:  I don't know.

MS BENNETT:  All right.  Okay.  Returning then to the question --- after two suspensions, should the strategy of imposing suspensions have been revisited?

MR POTTER:  Yes.

MS BENNETT:  Okay.  And should a different strategy then have been tried?

MR POTTER:  Again, not knowing the context, not knowing the basis of the discussions after those two suspensions, I can't comment.

MS BENNETT:  All right.  If you had --- you carried out a review of the 20 day  
suspension of 22 August; is that right?

MR POTTER:  That's correct.

MS BENNETT:  So you reviewed the Principal's decision; is that right?

MR POTTER:  Yes.  Yes.

MS BENNETT:  And you reviewed the Principal's decision because Amy had asked to bypass Mr Eastcott because she perceived he had been involved?

MR POTTER:  That's correct.  Initially it was the suspension, I think I read that, about 8 August, I remember, and then she wrote to me, she also included that.  She wrote to me on 22 August from memory, and that was the day of the [videolink audio truncated].

MS BENNETT:  Right.  And you heard evidence that --- what is the extent of input you would expect someone in Mr Eastcott's position to have into the decision to impose a suspension of 20 days?

MR POTTER:  My expectation would be that he would have provided advice in respect of the policy and offer support of people with expertise within our Learning and Wellbeing Team.

MS BENNETT:  Would you expect him to suggest the length of a suspension that would be appropriate?

MR POTTER:  I would expect that he made clear what the options were.

MS BENNETT:  All right.  Because, Mr Potter, as you sit here, you tell the Commission that you can't decide on the appropriateness of a suspension because you don't have all the facts, and I can see that you're not privy to all the information that the classroom teacher and the Principal might be, and that's the reason you say you can't make some of these decisions.  Is that right?

MR POTTER:  And because I'm not fully aware of the context or the events that happened.

MS BENNETT:  And would not Mr Eastcott be in a similar position?

MR POTTER:  The expectation is that the Director knows the school and has ongoing contact with the school, and knows issues that are arising within the school that might be causing the Principal to make significant decisions.  However, can I say that at that time in our organisational structure the Director was responsible for approximately 35 schools.  In our current educational structure, organisational structure, the Director is responsible for approximately 20 schools or 20 Principals and I would expect, now, to have a much stronger knowledge of what was happening  
in every one of those schools that the Director was involved with.

MS BENNETT:  All right.  I want to perhaps test this with you.

If the witness could be shown NSW.0029.0005.0442 which, Commissioners, appears at Bundle A, Volume 6, Tab 55.

Operator, I'm looking at page 0443, which is page 2.  And then the third paragraph, if that could be enlarged for Mr Potter:

Given the arrangement for me to contact [Mr] Eastcott.

I will just say this is written by the Principal, I understand it:

Given the arrangement for me to contact Andrew Eastcott before taking any further suspension action regarding Sam (as a result of the suspension appeal from the previous suspension), I returned to my office and phoned Andrew Eastcott.  Andrew was unavailable but I left a message for him to call me at his earliest convenience, citing a suspension situation re Sam.  .... [a person] phoned me back, the details of the conversation are recorded above.  During the course of our conversation I also indicated I was planning to phone Amy to let her know there had been an incident involving Sam and that I was seeking advice on how to proceed. (Amy had disputed at the previous suspension the fact that an incident had occurred in the morning and that she had not been informed until the afternoon).  I was advised by [a person] not to contact Amy until I had heard from Andrew.

Now turn to the next paragraph:

Andrew returned my call and advised me to impose a long (20 day) suspension.  I completed the paperwork and telephoned Amy ....

Just pausing there, Mr Potter, is that consistent with your expectation of the level of involvement of Mr Eastcott?

MR POTTER:  I would not expect a Director to tell a Principal what to do, but to talk about the options.  It was the Principal's responsibility to make the decision.

MS BENNETT:  And the Director is lacking context, as you remind us, isn't that fair?

MR POTTER:  He may have been lacking context.  I tried to explain to you what could be the case but, again, I'm not aware that he either did know or did not know context.

MS BENNETT:  Yes.  Okay.  Does this go beyond the advice and guidance you would expect from a Director?
 

MR POTTER:  To instruct a Principal to do something, yes.

MS BENNETT:  Yes.  All right, I would like to talk to you about the Draft Student Behaviour Strategy.  Now, this is a Draft Behaviour Strategy which you say is being considered by the Department that you talk about at paragraph 99 of your statement.  Is that right?

MR POTTER:  My statement.  Thank you.

MS BENNETT:  Can you tell the Commissioners what has driven the Department towards an updated behaviour strategy?

MR POTTER:  Yes.  You referred earlier to changes in context.  I think that you referred to a document where you talk about the increase in the number of students presenting in schools with various degrees of disability.  The increase in funding that has been commensurate to that, and it's appropriate that decisions or policies that might have been in place before are reviewed to the context of the day.

MS BENNETT:  Yes.  All right.  Can you provide the Commissioners with an update on the status of that consultation?

MR POTTER:  The actual consultation closed on Sunday   

MS BENNETT:  Yes.

MR POTTER:  --- And there is now consideration being given to any responses that have been forwarded to the Department.  Plus a consideration of the Telethon Report, which you have a copy of, also considering the Ombudsman's recommendations, and I'm sure I have been told that the recommendations that come from this Commission will also help inform taking that strategy forward in terms of its development.

MS BENNETT:  Now, Mr Potter, we started this afternoon with me asking you if you wanted to add to your reflections about the ways in which the New South Wales Department of Education dealt with Sam and Sam's family.  Now, I've been trying to keep a note of some additions that you might want to consider to your reflections and I would like to run them by you to see if it's a fair reflection of your evidence.  Is that okay?

MR POTTER:  --- thank you.  Yes.

MS BENNETT:  All right.  In relation to the suspension appeal, I think you indicated that Sam's appeal “took longer than it should have” and there was an indicative timetable, “it went  longer than it should have gone and I should have been more vigilant in terms of keeping an eye on that timeframe”.  Is that fair?

MR POTTER:  Yes.
 

MS BENNETT:  In considering the appeal, you took into account the full list of adjustments that you had, but you didn't consider whether or not the adjustments were actually in place.  Is that fair?

MR POTTER:  When I saw the suite of adjustments, I didn't take into account or didn't seek to find out which ones were working and which ones weren't, knowing that there was a whole lot of adjustments in place.

MS BENNETT:  Yes.  You weren't told the number of suspensions that Sam had and I think on reflection you accept that you ought to have been told that?

MR POTTER:  Not that I recollect, and I accept that.

MS BENNETT:  Is it fair to say you ought to have checked with Amy about the information you received from the school?

MR POTTER:  I or the person who was contacting her, but that would have been at my instruction.  So, yes, I accept that.

MS BENNETT:  Yes.  I think you said you would expect   sorry.  I think that you have observed that you would allow an appeal against a suspension where reasonable adjustments have not been provided.  Is that a fair reflection of your evidence, that you would generally accept an appeal if you were satisfied that reasonable adjustments had not been provided?

MR POTTER:  If I knew that they weren't provided, yes.

MS BENNETT:  Yes.  In relation to the suspension policy, I think   is it fair to say that that policy should tell Principals something about what a reasonable adjustment is rather than providing that information only if requested?

MR POTTER:  There would be support documents available that would   that should, if not attach to the policy and I would have to take that on notice whether there are.  I'm uncertain.

MS BENNETT:  All right.  And in relation to funding, you accept that it would be incorrect to say that the provision of a teacher's aide is contingent on receiving funding for that child?

MR POTTER:  That's correct.

MS BENNETT:  Yes.  Okay.  Now, I'm just receiving a number of messages trying to add in additional questions before we end.  But I am reminded that I was to ask you about the Scout system, document management system.  Can you tell the Commissioners about that?

 
MR POTTER:  Yes.  It's a comprehensive record of data related to the school in terms say of school performance, academic performance, attendance, suspensions and other relevant data that is recorded centrally that schools have access to, that the Department has access to, and that the Director of that school would also have access to.

MS BENNETT:  Okay.  And was that in place at the time that Sam was being suspended?

MR POTTER:  Not to the extent it is now, no.

MS BENNETT:  Okay.  Do you reflect with pride in the way that the Department responded to Sam and his needs?

MR POTTER:  Not knowing the full context    

MS FURNESS:  I object.  Excuse me, Mr Potter    

MS BENNETT:  I withdraw the question.  I have no further questions of this witness.

CHAIR:  Yes.  Thank you.  I will ask Ms Furness if she has any questions but before doing that I shall ask the Commissioners as to whether they have any questions of Mr Potter.  I will first ask Commissioner Atkinson?

COMMISSIONER ATKINSON:  No, thank you.

CHAIR:  Commissioner Mason?

COMMISSIONER MASON:  No, thank you.

CHAIR:  Commissioner Galbally?

COMMISSIONER GALBALLY:  No, thank you.

CHAIR:  Thank you.  Just one other matter, Mr Potter.  In the decision of Mr Eastcott of 17 August 2016 he stated, and this is on the fourth page of that document, that when determining discrimination in relation to the Disability Discrimination Act 1992 (Cth) and the Disability Standards For Education 2005, the following considerations are made: the degree of intentionality involved in the misbehaviour.  Did you take into account in your decision the degree of intentionality involved in Sam's "misbehaviour"?

MR POTTER:  No.

CHAIR:  I'm sorry?

MR POTTER:  No.
 

CHAIR:  No.  What did you take into account in determining the character of that misbehaviour?

MR POTTER:  The impact that it had on   in terms of the extent of the violence, the serious violence, the impact that it had on the student and staff members who were being adversely affected.

CHAIR:  Thank you.  I don't in any way minimise the impact on staff that the issues that arose in the first two or three weeks of Sam's position at the school as revealed by the detailed notes that we were referred to earlier on that were kept by the school.  But the very first communication in writing is that letter of 24 February 2016 to Amy which starts by saying:

This letter is to inform you that despite extensive and ongoing support and individual adjustments your son…… has been behaving inappropriately….he has breached the school’s discipline code by “Aggressive behaviour’…..  If this behaviour continues…he may be suspended.

Can I put to you that this was an entirely inappropriate letter to send to the parent of a 5 year old child who had been at school for three weeks and clearly had complex issues to deal with?

MR POTTER:  Commissioner, as a Principal of a school I would not have written that letter.

CHAIR:  May I take it you are agreeing with me?

MR POTTER:  Yes.

CHAIR:  That concludes the examination.  Yes, Ms Furness, is there anything you wanted to ask Mr Potter?

MS FURNESS:  No thank you, Commissioner.

CHAIR:  And I take it there is no other legal representative that wishes to ask Mr Potter any questions.  Silence being equivalent to no.  Thank you.  Thank you, Mr Potter, for giving your evidence and attending.  We appreciate your attendance.  Thank you.

THE WITNESS WITHDREW

CHAIR:  Do we now adjourn until tomorrow?

MS BENNETT:  Yes, sir.  I understand so.
 

CHAIR:  I will just check that Dr Mellifont doesn't want to raise any issues this evening before we adjourn?

DR MELLIFONT:  [Audio feed delayed]…Brisbane time.

CHAIR:  We can adjourn until 10.00 am Brisbane time.

DR MELLIFONT:  Yes, please.

CHAIR:  11.00 am Melbourne and Sydney time.  Thank you.  We will adjourn until then.

DR MELLIFONT:  Thank you.

ADJOURNED AT 3.56 PM UNTIL WEDNESDAY, 14 OCTOBER 2020 AT 10.00 AM AEST