The deadline for Victorian schools to be compliant with Ministerial Order 870, which contains the seven Child Safe Standards (the Standards), is this Monday, 1^st August. In anticipation of this, the Victorian Registration and Qualifications Authority (VRQA) recently notified all schools of a new requirement to provide declarations of their compliance with the Standards. But what does making a declaration actually mean? 

This article examines this new declaration requirement and looks at how it compares to similar practices in other States and Territories which require school governors and leaders to sign declarations or attestations.

New Victorian requirement

The communication from VRQA states that all schools are required to complete and return a:

1. Compliance Self-Assessment;
2. declaration; and
3. statutory declaration.

The Compliance Self-Assessment addresses each element of each Standard and to complete the assessment, schools must state whether they are fully or partially compliant. Where schools state that they are 'partially compliant' they are required to state the actions they will take to achieve compliance by the end of 2016. The Compliance Self-Assessment is probative in that it requires details of implementation strategies that go beyond documentary evidence of policies and procedures. The prescriptive elements of the Standards are clear and still need to be addressed, but there is an emphasis on the subjective elements of each Standard which schools need to consider and implement according to their individual circumstances.

At the end of the Compliance Self-Assessment is a Declaration of Compliance with the Prescribed Minimum Standards for Schools: Guideline for Child Safe Standards (Declaration). It is a formal undertaking and requires schools to declare that, having completed the Compliance Self-Assessment, they comply or partially comply with the Standards and, where necessary, have an action plan.

Then there is the statutory declaration, which is the final part of the compliance documentation. It is a written statement that declares the information provided in the Compliance Self-Assessment and Declaration is correct.

The declaration and statutory declaration both need to be signed by a school’s principal and chair of the school governing authority. This is consistent with the approach in Ministerial Order 870 that the school governing authority is ultimately responsible for a school’s compliance with the Standards.

Declaration requirements are not new for Victorian schools. The VRQA Guidelines to the Minimum Standards for Registration of Schools already require the following two forms of declarations:

• to satisfy the VRQA that a school’s governing body members and principal are of good character and have the skills, knowledge and experience necessary to govern the school effectively, they are each required to complete and sign a Declaration of Good Character; and
• to ensure that a school does not run for the purpose of profit or gain, schools must sign a not-for-profit status attestation statutory declaration.  This only applies to new schools or schools established before 1 July 2007 who are amending their registration details by adding a campus or year level.

However the requirement for declarations to be made in relation to child protection is new and the requirement to sign a statutory declaration introduces legislative obligations which exist in addition to compliance with registration requirements.

What is a statutory declaration?

A statutory declaration is a written statement that a person signs and declares to be true and correct before an authorised witness (eg an Australian lawyer, a chemist).  A correctly signed statutory declaration is a representation by a person that they agree that the information in it is true.  If the information in the statutory declaration is found to be false, the signee could be found to have committed an offence such as perjury or making a false declaration, both of which can lead to jail time. In other words, the information is binding and can be used against a person in legal proceedings. Each State and Territory has prescribed legislative requirements regarding the signing of statutory declarations (eg the Evidence (Miscellaneous Provisions) Act 1958 in Victoria). Federal legislation also applies.

So if a principal and chair declare that:

• their school is compliant with the Standards; or
• that they will complete actions to ensure compliance by the end of 2016,

and that information is incorrect, they may face serious legal consequences.

By asking a school’s principal and chair to sign a statutory declaration, the VRQA is setting a new threshold of liability for non-compliance. It demonstrates how seriously the VRQA and the Victorian Government, treat the successful implementation of the Standards and the fact that each school, and their responsible persons, are personally responsible for compliance.

Declaration requirements in other States and Territories

Victoria is also not the only State or Territory that requires schools to provide declarations as part of their registration requirements.

Western Australia

Under the 2016 Application for Renewal of Registration Guide, the Department for Education Services (“DES”) requires non-government schools to provide five forms of declarations:

• similar to the Victorian Declaration of Good Character, every member of a school’s governing authority is required to complete and sign a ‘fit and proper’ declaration, to satisfy DES that each member of the governing body is fit to operate a school;
• schools are required to complete and sign a register of all staff at the school, which include details of teacher registration, Working with Children Checks, police checks and qualifications where relevant;
• schools must declare that their buildings, facilities and grounds (including off-campus facilities) meet all legal standards and comply with health and safety requirements. This is known as the Physical Environment Declaration and must be signed by the Chair and another member of the governing body;
• schools must also declare that their enrolment and attendance policies and procedures comply with relevant legislation, referring to ten different Acts and Regulations. This is the Enrolment and Attendance Declaration and must be signed by the Chair of the governing body and the principal; and
• finally, a general Declaration must be signed by the Chair and another member of the governing body stating that the information provided is correct, the school is not-for-profit and it complies with relevant legislation.

Unlike a statutory declaration, these declarations are not legally binding. These declarations ask a school's principal and Chair are asked to certify the above information "to the best of their knowledge and belief". Belief is different to knowledge of fact, which is the standard required by a statutory declaration.

Australian Capital Territory

In 2015 a new compliance requirement was introduced for ACT non-government schools.  The 2015 ACT Registration of Non-Government Schools Manual (“the Manual”) requires a Statement of Assurance to be signed by school principals annually. It is a declaration that a school is compliant with all relevant ACT and Commonwealth legislation. The purpose of the Statement of Assurance is to encourage schools to treat compliance as an ongoing obligation, rather than one they address when they are renewing their registration.

Although this requirement makes schools personally liable for continuous legislative compliance, it does not have the same legal consequences as signing a statutory declaration. Similar to the Western Australian requirement, the school's principal is asked to make an annual assurance statement based on their "opinion" that the school maintains evidence of compliance.

Other States and Territories

Although the other States and Territories do not currently have any equivalent declaration requirements, there appears to be a trend towards introducing or increasing such requirements. Time will tell whether this will become the norm for all non-government schools across Australia.

What does this mean for schools?

Victoria, Western Australia and the Australian Capital Territory all require declarations to be routinely made as part of a school's registration requirements. Those declarations should be treated seriously as they are a representation as to a state of facts by the school and its responsible persons.  However, as this article has discussed, the introduction of a statutory declaration requirement in Victoria is different to other declarations prescribed by regulation requirements because it has the force of law - with serious consequences. The new 'level of truth' require by the Child Protection Statutory Declaration might be a sign of what is to come in other jurisdictions.