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Changes to NSW Registration Manuals: fit and proper and financial viability criteria

4/01/17
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The NSW Education Standards Authority (the Authority), formally known as the Board of Studies, Teaching and Educational Standards NSW (BOSTES) had a busy end to 2016 due to some key new changes being introduced and/or taking effect in 2017.

The Authority has introduced changes to the Registered and Accredited Individual Non-government Schools (NSW) Manual and Registration Systems and Member Non-government Schools (NSW) Manual (the Manuals). The changes reflect amendments to the Education Act 1990 (NSW).

The update is given immediate effect by the Official Notice, dated 19 December 2016.

The revisions to the Manuals reflect the significant changes to the organisation previously known as the BOSTES, as described in our article Significant reform to the authority and focus of the BOSTES: “needless duplicating” to be stopped.  All references to the BOSTES in the Manuals have been replaced by "the Authority."

Schools should also be aware that amendments have been made to the Guidelines for the Regulation of Teacher Accreditation Authorities for Non-government Schools and Early Childhood Education Centres (the TAA Guidelines).

Transitional amendments

Although the Authority has helpfully provided marked-up versions of the changes between the 2016 Manuals and the revised versions, the information in the Official Notice suggests that the revisions may not be final. The Official Notice states that:

"The Manuals are amended on a transitional basis to cover the period 1 January 2017 until the Board of the Authority meets in 2017 and either confirms the amendments or requires changes.  Schools with a registration period expiring at the end of 2017 have been notified of these changes and the renewal process to be implemented in 2017. Further information about the changes will be published early in 2017, particularly in relation to certification of financial viability."

It is unknown when the Board will meet. The references to further information can help schools who may be undergoing registration early in 2017 who should, in theory, follow the revised Manuals in the absence of further direction from the Authority.

Key Changes

The key changes summarised below apply to both Manuals.

  • Curriculum - quality of student learning.

All levels of schooling (primary and secondary) must demonstrate evidence ''relating to the quality of teaching and student learning".  The Manuals explain what ''quality of teaching and student learning" means.  While this requirement is already addressed elsewhere in the Manuals under the section "Quality of the Educational Program", the updates have added similar information to the Curriculum section.

Evidence of compliance by a school includes documented expectations for a standard of teaching, how the standard is monitored and how the school implements strategies to improve the standard of teaching.  The Australian Professional Standards for Teachers are the standards of teaching which apply.

  • Management and operation of the school - fit and proper responsible persons.

Previously, responsible persons were required to be of ''good character''.  Now, a responsible person must be a ''fit and proper person''.

The Manual explains what factors the Authority will consider when determining whether a person is fit and proper. The factors are similar to those required for a person of ''good character.''

For example, being declared bankrupt or being convicted of, or charged with an offence including in relation to children, dishonesty or violence. Evidence of a school's compliance with this requirement includes having policies and procedures in place ensuring that responsible persons sign a statutory declaration prior to commencing at the school and at least on an annual basis while remaining a responsible person at the school.  Refer to our previous article for information about the significance of a statutory declaration: Principal attestations & declarations: What are you actually signing? 

The statutory declarations must be retained for a period of seven years and the school must notify the Authority if it determines that a responsible person is not ''fit and proper''.

  • Management and operation of the school - financial viability.

A registered non-government school must be financially viable. Financial viability provides for the school to be administered and achieve the purpose of providing an education whilst remaining financially solvent.

Although the Manuals previously required that schools appropriately managed topics related to financial solvency such as related party transactions and having their annual financial statements audited and certified by an external independent auditor, the addition of the financial viability requirement is new.

Evidence of a school's compliance with this requirement includes retaining audited and certified financial statements for a minimum period of seven years.  Schools must also obtain a certification of financial viability in "the form prescribed by the Authority" and keep it for a minimum period of seven years.  The Authority has stated that it will publish further information about this certification requirement.

Information about the risk assessments which the Authority may request from a school to demonstrate compliance with the registration requirements is also included in the updated Manuals.

Changes to the TAA Guidelines

An Official Notice dated 23 December 2016 by the BOSTES (pre-name change) announced that revisions had been made to the TAA Guidelines, with effect from 1 January 2017.  Helpfully, a marked-up version of the amendments has also been released.

Again, the TAA Guidelines are amended on a transitional basis to encompass the period commencing and following 1 January 2017 until the Authority's Board meets in 2017 and either confirms the amendments or requires changes to be made.

Like the Manuals, references to the BOSTES have been replaced by references to the Authority.  Other key changes include:

  • the creation of a new TAA role: the prime authorised delegate - being the role/position that has been delegated by the TAA to be the TAA’s primary authority to exercise its functions, including to make decisions regarding the routine operation of the TAA and accreditation of teachers; and
  • removing the power of a school's TAA to suspend or revoke a teacher's accreditation. Now the Authority is the only entity with the power to do so.

What should schools be doing?

Although the updated Manuals and TAA Guidelines are classified as ''transitional'' schools whose registration renewal is in 2017 should understand and implement their amendments.  This is because until the Authority says otherwise, they appear to be in effect.

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About the Author

Xenia Hammon

Xenia is currently a senior content consultant at Ideagen. She also practised as a commercial lawyer, both in private practice at a large, national law firm and in-house at an ASX-listed company.

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