With just over a week to go until the curtain falls on the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), schools around Australia will likely remember 2017 as the year of child protection debate – marked by public criticism of organisations including schools, for their handling of allegations of child abuse and inappropriate conduct towards young people. While the Royal Commission was on foot, several state and territory governments introduced legal reform in response to, and independent of, Royal Commission findings and recommendations.

However, there has been another area of governance specifically affecting schools, which has undergone extensive legal reform over the past year: requirements for registration as a non-government school. Like child protection, education law is primarily state and territory regulated. And like child protection law, the state and territory governments are all legislating on the same governance topics - but doing it slightly differently. And this year, School Governance has seen more legal and compliance changes than any other. Should Australia be reconsidering how it approaches education regulation for non-government schools?

What’s the big deal with registration?

In each state/territory, the registration requirements for non-government schools vary in extent and stringency. However, the core concept is always the same: non-government schools are responsible to a regulator to meet certain conditions which demonstrate they meet standards of governance, will deliver an appropriate curriculum, uphold student welfare, support staff development, maintain facilities and other obligations.

Each regulator produces guidelines/manuals/handbooks interpreting a school's legal requirements and listing the evidence a school must have to demonstrate they have met their registration requirements (Registration Guidelines). A school's registration is typically renewed every five years. Despite this time period, Registration Guidelines are updated at least once a year. This means that schools can't afford to ignore their registration requirements until a few months before their renewal date; schools are increasingly required to demonstrate 'continuous compliance'.

The policies and procedures schools need to maintain registration generally relate to an underlying legal obligation in an act or regulation, including work health and safety and child protection. This means that each time an act or regulation changes, schools need to demonstrate compliance with the amended law, or risk being de-registered.

For example, under regulation 15 of the Education (Accreditation of Non-State Schools) Regulation 2017 (Qld), non-government schools must comply with the requirements of the Work Health and Safety Act 2011 (Qld) to be accredited. In October, that Act was amended to include a new industrial manslaughter offence. This technically means that it became an immediate registration requirement for Queensland schools to comply with their obligations under that amended Act in October. However, the Queensland Registration Guidelines have not been updated since 2016.

It’s easy to see why registration is such a complex area for non-government schools – parliaments are constantly changing the law and, in response, regulators are constantly updating the evidence requirements that schools need for compliance with the laws.

What registration changes have occurred?

In 2017, nearly every jurisdiction (with the notable exception of the ACT) has updated its registration system for non-government schools. Half of Australia’s non-government schools have undergone a regulatory upheaval, for example, through the passage of new ‘education’ legislation in NSW, Victoria, Queensland and Tasmania. These legislative updates have each brought with them a reformed registration system.

NSW streaks ahead of other jurisdictions in its registration reform, with four updates in the past 12 months, without a doubt leaving schools struggling to keep up. The NSW changes are in response to underlying legislation changes but their staggered introduction during the year has not made things easy for schools. And in South Australia, non-government schools must now, for the first time, comply with the Standards for Registration and Review of Registration of Schools in South Australia to be registered – a much more significant compliance hurdle!

Refer to the Table at the end of the article for a summary of changes to non-government school registration requirements for 2017 and 2018.

The unfortunate pattern

Across each of these jurisdictions, the way regulators have implemented revised registration requirements has left schools in the dark as to the extent of their obligations, even in the face of looming compliance deadlines. The pattern of registration updates has some concerning characteristics:

1. Lack of clarification

Many jurisdictions have experienced substantial expansion or changes to registration requirements without much clarification or guidance from the regulator on the extent of consequential evidentiary expectations.

Victoria is a great example of this. Despite extensive changes in the Education and Training Reform Regulations 2017 (Vic), there was surprisingly minimal change made by the VRQA to its Registration Guidelines. Despite adding the requirement that the proprietor of a registered school must have ‘sufficient controls’ in place to ensure that school property/assets are not used for the profit/gain of others, the Guidelines avoid explaining what ‘sufficient controls’ actually are. Schools are forced to consider other examples of governance guidance to help interpret this phrase.

In NSW, subtle changes to wording in the Registration Manuals have meant that non-government schools must demonstrate school-wide policies and consistent practices in areas identified by the Australian Professional Standards for Teachers. This made what was previously a teacher’s obligation, a collective obligation, and through a single wording adjustment drastically expanded the policies and procedures which needed to be maintained. These changes have occurred with very limited guidance and have not been clarified further.

2. Guidance lag

Another problem is the delay between new legislation and regulation and the release of new Registration Guidelines explaining how schools should comply with the legislation and regulation. In a clear example of regulators legislating first and asking questions later, there have been numerous examples of registration overhauls which have been followed by a huge delay in the release of evidentiary guidelines to make sense of the changes. In each case, this has left schools stressed and confused as they struggle to interpret their compliance requirements before commencement dates, or their renewal deadline.

For example, the new Education Act 2016 (NT) commenced on 1 January 2016, with the aim of addressing deficiencies in the registration and operational requirements for Northern Territory non-government schools. Despite this goal of clarification, the accompanying Registration Guidelines. The Registration of a Non-Government School Policy and Guidelines were not updated to align with the new Act until 28 November 2017, nearly two years later.

In Tasmania, even though the new Education Regulations 2017 commenced in July, and despite suggesting that Registration Guidelines would be published in October, the Non-government Schools Registration Board has, at the time of this article's publication, failed to release guidance material on requirements which are commencing in 2018. The situation is similar in Queensland, where the Cyclical Review Guidelines are yet to be updated despite the Education (Accreditation of Non-State Schools) Act 2017 taking effect on 1 January 2018 and imposing significant new compliance requirements on schools.

3. Same concepts - different definitions

In spite of common registration themes applicable to all non-government schools (curriculum etc), the governments introducing the legislation differ in their interpretation of these common themes. For example, both Victoria and Queensland have adopted new definitions of what it means to be a 'not-for-profit' (NFP) school, but those definitions are different! It is perplexing to think that the same governance requirement can be the subject of different definitions in each state and territory - but this is the case. It seems to be an incredible waste of time and resources for each government to legislate so differently on a common requirement: NFP. The same situation applies for definitions of 'good character', 'responsible person' - the list goes on.

The solution: A national registration system?

In light of the pattern above, the question must be asked - why don't we have a national registration standard?

The concept of a national registration system for non-government schools is certainly not a new one. In fact, the issue was considered by the Royal Commission in its extensive research report Oversight and regulatory mechanisms aimed at protecting children from sexual abuse: Understanding current evidence of efficacy (the Report). As the Australian Government facilitates the financing of school education under the Australian Education Act 2013 (Cth), and this can be conditional on compliance with national policy initiatives, the Report theorised that it was possible for school funding to be made conditional on compliance with national child protection requirements.

The findings of the Royal Commission should not be understated or restricted simply to child protection – there is the potential under the current regulatory framework for school funding for a national registration system for non-government schools. This national model could either employ an ‘Australian School Registration Manual’, or it could be based on the current National Quality Framework for Early Childhood Education through use of an applied law system.

A national registration system would eliminate inefficiency and the need for duplication by state/territory regulators, who could instead focus on the specific compliance requirements unique to their jurisdiction’s schools. Uniformity in registration conditions would also provide greater clarity and reduce uncertainty for schools.

The need for continuous compliance

However, a national registration system would not solve the difficulty faced by schools in attempting to demonstrate compliance in the lead-up to their registration renewal date. A school is unlikely to demonstrate that it is complying with legislation on an ongoing basis if it is hurriedly attempting to collate evidence in the days before a deadline.

The message is simple: schools shouldn’t just try to comply once every five years at registration renewal, but should be aiming to continuously comply with their registration requirements. They should develop an integrated approach to compliance, conducting periodic internal reviews which align with, and liaise with, their regulator, to identify compliance gaps and develop a school improvement plan (a registration requirement some jurisdictions in its own right).

Doing so requires schools’ governing bodies to remain up-to-date with legislative changes to accumulate ongoing evidence that it meets new and updated requirements. By no means a simple task, but a necessary one in the current era of regulatory upheaval.

How does your school ensure continuous compliance with registration requirements?

Table of National Registration Changes 2017