The Western Australian Government has introduced changes to the legal obligations of schools, in a move that is now becoming familiar to all schools across every State and Territory. The changes were introduced through an update to the “Guide to the Registration Standards and Other Requirements for Non-government Schools” (Registration Guidelines) and through the Children and Community Services Legislation Amendment and Repeal Act 2015 (the Act), the provisions of which commenced in January 2016.

Changes to registration requirements

The updated Registration Guidelines were published by the Department of Education Services (the Department) in February 2016 and contain a number of changes to the standards which a non-government school must meet to be registered. As schools must continuously comply with the standards, regardless of when they are due to apply to renew their registration, these changes are relevant to all non-government schools within Western Australia as of the date they took effect (8 February 2016).

The major changes made to the Registration Guidelines by the Department include:

• an expansion of the definition of ‘critical incidents’ (events which require the principal to make a report to the Department);
• an obligation to be compliant with the National Quality Standard for Early Childhood Education and Care;
• a new standard on ‘behaviour management’ which consolidates previous requirements;
• requiring an update for child protection policies to be compliant with new legislation and to encompass grooming; and
• expanding working with children card requirements to all staff.

Several more minor changes have been made, including changes to the documentation that may be required of schools and changes to terminology. Given the importance of compliance, non-government schools should be familiar with the full scope of the changes to the Registration Guidelines.

Critical incidents: what’s different?

One of the key changes for schools is the update to critical incident notification requirements. The definition of critical incidents has been expanded, and now includes:

• the receipt of an allegation of child abuse – whether it occurred recently or in the past;
• a mandatory report being made in relation to a student at the school; and
• the issuing of a formal warning to or ceasing the employment of a staff member for a breach of the staff Code of Conduct suspected to be grooming behaviour.

Principals have the duty to notify the school’s governing body and the Director General of the Department of any critical or emergency incidents within 48 hours of the incident. The change in definition is significant for principals, as their obligation to notify the Department now extends to any mandatory report they know of and any allegation of child abuse, whether the allegation relates to a recent or historic event or whether it involves a member of staff, fellow student or any other person. Given the strict time requirements of this notification requirement, this could at times be a significant burden on principals.

Changes to mandatory reporting

The Act has also made legal changes that schools must take into account when reviewing existing child protection policies. Previously, only teachers were required to report their reasonable belief that a child or young person has been subjected to sexual abuse. The Act expands this obligation to also include ‘boarding supervisors’ of a school boarding facility, being a person who holds an office or position at a boarding facility. This change was introduced in response to the St Andrew’s Hostel Katanning Inquiry which provided recommendations to the WA Government in 2012.

Changing legal landscape

Continuous compliance is of particular importance to all non-government schools, as it is a requirement of their registration and therefore vital in order for the school to continue receiving government funding. Less than three months into 2016, every single State or Territory Government has announced changes or planned changes to their laws and regulations that apply to schools. This level of legislative creation, review and amendment is not new and is likely to continue in the future, given anticipated events such as the release of the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017.

Schools cannot afford to have a lax attitude to legal compliance. In the case of non-government schools, they must continually comply with their registration requirements. The WA changes will require amendments to existing policies and procedures. Even if schools wait until they are required to renew their registration, it would be impractical to attempt to understand five years of legislative and regulatory change and demonstrate continuing compliance with those changes from each relevant commencing date.

CompliSpace will publish a briefing paper which will address in more detail the changes made to the Registration Guidelines, including the implications of the Act.