This is the third article in a four part series on the role of the regulator in assessing school compliance. In this series, Craig D’cruz, National Education Consultant at CompliSpace, explores the role of State and Territory education authorities in determining how schools meet their accreditation or registration requirements and the scope of the authorities’ powers. In Part Four of this series, Craig will be asking the question: 'What is the role of the State Associations for Independent Schools with regard to on-going school registration?'

It could be argued, as noted in previous articles in this series, that the first and foremost requirement for the re-registration audit of a school is to ensure that government funding is being spent (or will be spent) to meet the general recurrent costs of providing education programs for the students of the school. This is a concept that would be hard to refute as it is a major requirement of the Australian Education Act (2013).

The Australian Education Act has supporting Regulations as do the education acts in the States and Territories. These education acts and regulations, with the exception of South Australia, are also accompanied by registration standards, and sometimes guidelines as well, that are determined by the relevant Minister of Education and possibly also by a government appointed regulator.

The government appointed regulators are tasked with ensuring that non-government schools abide by the conditions of the Federal, State and Territory Acts and Regulations, as well as the Standards as required by the State/Territory Minister. So, in addition to the appropriate spending of government funds, what are these regulators really looking for when undertaking a registration review of a school on behalf of the Minister?

Are they just wanting to review school policies and procedures? Is just asking for and receiving a policy enough to satisfy the regulators that the school is compliant? According to the Western Australian 'Guide to the Registration Standards and Other Requirements for Non-Government Schools' (2017), this is not enough. Do they check to see if the school is compliant with other Acts such as work, health and safety (WHS)? Or do they just want to know, as per the Australian Education Act 2013 or as per a corresponding State/Territory Act, if the school is providing quality teaching, quality learning, meeting student’s needs, empowering the school leadership team and being transparent and accountable? So who checks to see if schools are compliant with the other Acts?

Across the board, as a general summary, all registered non-government schools who report to a regulator in their jurisdiction must:

• observe the standards (where they apply) throughout the period of their registration;
• comply with any conditions and directions given by the regulator; and
• provide information regarding the day to day management and ongoing viability of the school within the time parameters determined by the regulator.

On occasion, such as in Western Australia in The School Education Act (1999), there can be clauses within an Act that allow for variation of the standards as set by the Minister and/or the regulatory body- see the quote below.

159. Standards for non‑government schools

        (1)      The Minister may determine standards for non‑government schools about any of the following matters —

                        (n)      any other matter prescribed by the regulations.

This authority sometimes results in varied interpretations of the standards and 'other requirements' both by the schools applying for re-registration and sometimes by the auditors sent out by the regulator to assess the schools. The compliance issues associated with Western Australian non-government schools were discussed in a recent CompliSpace White Paper- Governance, Risk and Compliance within WA Independent Schools.

In relation to WHS (or occupational, health and safety (OHS)), experience shows that while regulators may confirm if a school has a WHS policy or program in place as part of their registration review, they don't act as WHS inspectors and so, they do not undertake a detailed review of any such policy.  Consequently, schools should not rely on a regulator's 'approval' of a WHS policy as evidence that they are meeting their relevant WHS legal obligations.  Instead, it is their own responsibility to ensure that their policies and procedures meet the relevant WHS or OHS statutory requirements in their jurisdiction.  In the Australian Capital Territory, a Statement of Assurance declaring that a school is compliant with all relevant ACT and Commonwealth legislation must be signed by school principals annually.  A similar process exists in Queensland. If you are the principal of a school which is not in those jurisdictions, you do not have a similar personal obligation to ensure ongoing statutory compliance in areas such as WHS, but this does not mean that your school should adopt the approach of reliance on an education regulator's approval of policies as evidence of your compliance.

However, it has become more apparent, in recent times, that the regulators are now seeking more than a ‘policy and procedure review’ when they conduct their re-registration audits of non-government schools. There has been a change in several States and Territories where the regulators are now looking closely at risks, risk management and compliance processes within schools- all of which have culturally significant outcomes.

Risk management should not be new to schools. Student duty of care, child protection, workplace health and safety and the principles of excursion planning, for instance, all require risk assessments to be undertaken. Unfortunately, however, the term ‘risk management’ is often used very loosely to describe everyday actions taken to mitigate everyday risks. School Governance discussed the link between risk and compliance in an article ’Risk and compliance – what exactly do schools have to do?’

In the Performance Metrics for ESOS Regulator (for Schools) – part of the Federal Government’s requirements for school regulators regarding Full Fee Paying Overseas Students (FFPOS), risk based approaches are now the expected norm- so perhaps this risk based audit requirement is being driven from a higher source?  The Performance Metrics includes the following requirement:

1.2.2 Apply a risk based scaled approach to non-compliance issues as appropriate to minimise the potential for unintended negative impacts of regulatory activities.

 KPI 3, 4, 5 and 6 also within this document all refer in detail to the risks that the regulators need to assess with regards to any school that enrols a FFPOS.

The States and Territories are quickly falling into line and risk management requirements are being included in the registration documentation and requirements for schools. For example, in NSW, Registration Guidelines state:

The ‘responsible persons' for a non-government school, are responsible for developing and implementing policies and procedures to govern and operate the school in order to satisfy its legal obligations, manage risk, provide strategic guidance and monitor performance.

The ‘responsible persons' for a registered non-government school must have in place and implement policies and procedures in relation to, but not limited to, the following:

• a document describing the school's risk management framework or plan for developing, implementing and reviewing risk management strategies in relation to strategic direction, governance, operation and finance and the associated risk register

And in Western Australia, the Guide to the Registration Standards and Other Requirements for Non-government Schools includes this requirement:

Risk management: Systematic and relevant proactive risk management must be developed to ensure that the school is meeting its obligations and duties for the health, safety and welfare of staff and students. Schools may choose to use external agencies or specialist providers to assist in the identification and resolution of risk issues. Documents such as audits and plans to manage risk provide relevant evidence.

In addition, the changes in child protection standards in Victoria have also resulted in schools being required to develop quite detailed risk management strategies but in addition, as reported in our previous article, they are also now expected to complete a statutory declaration as evidence of their risk management process.

So what exactly are the regulators looking for when a school seeks to be re-registered? Although this varies slightly in each jurisdiction, on the basis of State or Territory specific standards, it is clear that the regulators have the ability and the authority to interpret the Ministers’ standards by developing other requirements. However, it is also clear that the regulators not only look at policies and procedures, they seek to engage closely with each school to examine and understand the school culture and they look for full compliance with the Australian Education Act as there is a strict accountability process for schools receiving government funding to remain financially viable.

They also look to ensure that schools are providing quality education and teach to the requirements of an approved curriculum, suitable standards of discipline and behaviour management, a demonstrable high level of duty of care and child protection, that they meet the requirements of the Territory and State Acts for FFPOS and that schools have valid processes for the screening of and employment of staff and volunteers.

Finally, they seek to ensure that schools, in line also with ASIC and/or ACNC requirements, employ high quality governance standards, provide safe and learning conducive facilities, manage and deal with complaints in an appropriate manner, have developed a risk management framework (this varies in each jurisdiction) and appears to be compliant with other Acts that pertain to the day to day and ongoing management of the school such as privacy, discrimination, work, health and safety and rules of incorporation or association. They cannot, however, enforce undertakings under any other Acts other than their own.

To be blunt, schools should not have an argument regarding any of these matters. If schools accept government funding and if schools are serious about providing quality education in a safe and caring environment, then they need to remain compliant - and should be trying to remain continually compliant; not just reviewing policies and procedures in the six-month lead up to their next registration visit. Can a school afford to be complacent during the years between these registration visits when the requirements to be continually complaint are now being mandated? How does your school deal with this?