The Education and Training Reform Regulations 2017 (Vic) (Reform Regulations) will commence on 25 June 2017 (this Sunday). The Reform Regulations amend the existing Education and Training Reform Regulations 2007 (Vic) (2007 Regulations) which support the Education and Training Reform Act 2006 (Vic)(the Act). The Act lists the minimum standards that schools must satisfy in order to be registered and remain registered in Victoria.  Prior to the Reform Regulations being passed by Parliament, there was a period of public consultation on the draft regulations, which ended on 28 February 2017.

Information about the consultation process and the feedback received is available here on the Department of Education and Training website. Interestingly, while the Department produced fact sheets explaining the changes for government schools, parents and home-schoolers, there is no fact sheet for non-government schools.   This is somewhat surprising, given the significant new governance requirements relevant to non-government schools introduced by the Reform Regulations.

Key changes under the Reform Regulations: Definitions

For non-government schools, the key changes include changes to key definitions:

• governing body: for a non-government school means the person or body responsible for the governance, conduct or management of the school. The word governance has been added to this definition which reflects the new requirements for responsible persons to be involved in governing the school - as explained below.
• not-for-profit: the definition has been amended to emphasise that a proprietor of a school must not obtain any profit or gain from how the school is conducted.  A new sub-section is that the school must not be a party to a prohibited agreement or arrangement.  Related key new definitions are a new definition of proprietor: a person, body, or institution who establishes, owns or controls one or more registered schools, and includes the legal entity specified in the school's registration as the proprietor of the school.   The existing definition of prohibited agreement or arrangement has also been revised.

These amended or new definitions are relevant to the changes to the Minimum Standards.

Key changes under the Reform Regulations: Minimum Standards

Under the 2007 Regulations, the Minimum Standards for Registration are located in Schedule 2. Under the Reform Regulations, they will now be in Schedule 4.  Previously, there were 21 Standards, now there are 22.  The new Standard 22 is: School must be conducted in accordance with the scope of its registration. The meaning of this Standard is straight-forward.

However more significant changes can be found in:

Standard 15: School governance

The Reform Regulations have introduced the concept of a 'responsible person' to the Victorian registration requirements.  Similar to the requirements under the NSW Education Act 1990 (NSW), Victorian non-government schools must now have responsible persons who are 'fit and proper' to govern the school. There are several new definitions involved in this new requirement, most importantly the definition of a responsible person.

A responsible person means:

• if the proprietor is an individual, that person; or
• if the proprietor is a body, each person involved in directing the body; or
• each person who is conferred responsibility in the school governance structure for managing the school or its finances, including each member of the governing body of the school; or
• the principal of the school; or
• any other person who by the person's conduct assumes a position of authority over the governance or management of the school.

This definition is very broad and is designed to identify all significant people who have influence over a school's operations and decisions.  For non-government schools to comply with the new 'fit and proper' requirements set out in Standard 15, they must first identify who in their school will be responsible persons in line with the new definition.  And while the fit and proper requirements are similar to the requirements in other states' and territories' registration requirements, they are more extensive than the 'good character' requirements in the 2007 Regulations.  Under Standard 15, school principals must now notify the VRQA  in writing within 30 days when changes to key particulars occur, such as the name or contact details of the proprietor or principal and when a notifiable disclosure event in relation to a responsible person occurs, such as an adverse court finding relating to that person's honesty.

Standard 16: School's philosophy

Schools must now publish their statement of philosophy and be able to demonstrate how the school's philosophy is enacted.   This new requirement may have been introduced as a way of ensuring that a school's culture is actively promoted and enforced in line with its philosophy.

Standard 17: School must be not-for-profit

In line with the new definition of not-for-profit, this Standard has also been amended to include a new requirement that: The proprietor of a registered school must have sufficient controls in place to ensure that school property and assets are not distributed or used for the profit or gain of another person or entity.

This new requirement, in addition to the updated not-for-profit definition (and related definitions of proprietor and prohibited agreement or arrangement) reflect the increased focus of the government and community on schools who misuse funding. It also reflects the consolidation and changing structure of not-for-profit red tape reporting requirements around Australia, including changes to ACNC reporting.  In NSW, it is a registration requirement that non-government schools must comply with Guidelines to ensure transparency and accountability where they operate as a not-for-profit entity.  Similar guidelines may be introduced in Victoria.

Standard 21: Schools must have policies, procedures and suitable arrangements in place

The new requirement for schools to have suitable arrangements in place is related to section 4.3.8A(1) of the Act which allows the VRQA to make guidelines which a school must follow. Those guidelines can be on matters including:

• any of the matters in section 4.3.1(6): being the key registration requirements for non-government schools; and
• the monitoring and conducting of assessments of the financial capabilities of non-government schools.

The VRQA Guidelines (eg student discipline, anaphylaxis) are available on its website and it remains to be seen how the Guidelines will be updated in light of the Reform Regulations. 

VRQA Guidelines: updates pending

The VRQA Guidelines to the minimum standards and other requirements for registration of schools including those offering senior secondary courses  (VRQA Guidelines) have not been updated since March/April 2016 (both these dates are listed in the VRQA Guidelines).  There is no information on the VRQA website about what the Reform Regulations mean for non-government schools however its website does state: "The VRQA will be reviewing its affected publications, guidelines and forms to reflect the updated regulations. We will continue to provide updates on the regulatory changes to all stakeholders in a timely and appropriate manner, as more information is made available."

What should schools do now?

Although the updated VRQA Guidelines are yet to be released, all non-government schools should be mindful of the changes that will affect their registration requirements from next year.  School policies and procedures will need to be revised and updated.  New policies and procedures to comply with the additional Standards and revised obligations must also be developed and implemented.