New Queensland non-state school accreditation legislation receives assent

21 September 2017
The non-state schooling sector in Queensland educates approximately one-third of Queensland’s school students (approximately 266,000 students) through 504 schools. Non-state schools must be accredited to operate under the Education (Accreditation of Non-State Schools) Act 2001 (Qld) (the 2001 Act). In May, School Governance reported on the Education (Accreditation of Non-State Schools) Bill 2017 (Qld) (the Bill) and the changes it proposed to make to the 2001 Act. In August, the Queensland Parliament assented to the Bill making the proposed changes law by repealing the 2001 Act and replacing it with the Education (Accreditation of Non-State Schools) Act 2017 (Qld) (the 2017 Act). Although the 2017 Act is still yet to commence schools should be conscious of its affects on registration.

Impact of the 2017 Act

According to early Explanatory Notes, the 2001 Act was reviewed with a view to ''modernising and streamlining" non-state school accreditation. There are a number of new provisions in the 2017 Act, but as we identified in our previous article, there are four key areas that will have an immediate impact on Queensland non-government schools:

  1. Increased NSSAB Powers: the 2017 Act broadens the NSSAB’s functions to clarify that it is the NSSAB’s role to monitor and investigate offences under the Act and contravention of accreditation requirements. Under the 2017 Act, NSSAB will have the power to: monitor compliance with the 2017 Act and enforce compliance on schools who fail to comply with the 2017 Act; and conduct investigations about contraventions of, or non-compliance with the 2017 Act.
  2. Removal of provisional accreditation: the 2017 Act allows for a simplified process where the school will be accredited from the outset if the governing body is suitable and if the NSSAB determines that a school will comply with registration requirements from the commencement of the school’s operation. If the school is compliant or is not able to become compliant, the NSSAB reserves the right to cancel a school’s accreditation.  The concept of provisional accreditation no longer exists.
  3. Changes in government funding eligibility: the 2017 Act streamlines the way non-government schools are given government funding whereby a governing body will automatically be eligible for government funding upon accreditation; provided the NSSAB is satisfied that the school will not be operated for profit.
  4. Government body notifications: under the 2001 Act, governing bodies are not required to notify the NSSAB when directors change. Under the 2017 Act, the governing body must notify the NSSAB about changes in directorship and when a new director commences their directorship, provide a copy of the new director’s working with children clearance (blue card).  This change eases the administrative burden on the NSSAB.

For more information regarding these changes please refer to our previous School Governance article.

Not operated for profit and prohibited arrangement definitions have changed

To be eligible for government funding, a non-state school in Queensland must not be operated for profit. In the 2001 Act, a school is not operated for profit only if any profits made from the school’s operation are used entirely to advance the school’s philosophy and aims, as stated in the school’s statement of philosophy and aims.  This definition has changed in the 2017 Act. The new and 'reverse' definition is now worded as ''operated for profit" and means: a school is being operated for profit if any profits arising from the school’s operation are used for any purpose other than to advance the school’s philosophy and aims, as stated in the school’s statement of philosophy and aims.  The bold text indicates where the word ''made'' has been replaced by ''arising''.

Another difference is the deletion of the word ''entirely'' from the old definition. The former wording was more narrow in the sense that a school would only be ''not operated for profit'' if all profit was used solely for a purpose other than stated in the school’s statement of philosophy and aims.  The new wording, by removing the word entirely, has the effect of broadening the situations where a school may operate for profit to any case where the funds are used for a purpose other than stated in the school’s statement of philosophy and aims, not just a situation where the funds are used entirely for that purpose.

The related definition of prohibited  arrangement has also changed. The 2001 Act definition limits a prohibited arrangement to: a contract or arrangement entered into by a school’s governing body or proposed governing body and a for-profit entity not dealing with each other at arm’s length. The 2017 Act broadens the definition to include not-for-profit entities not dealing with each other at arm’s length and that is not, or will not be, for the benefit of the school. Schools should consider these revised, broader definitions, and their impact on their governance arrangements.

Cyclical Review Program Guidelines

The current Cyclical Review Program Guidelines (Guidelines) were last updated by the NSSAB in 2016.  It is anticipated that once the 2017 Act commences, the NSSAB will update the Guidelines to reflect the requirements of the 2017 Act.  Until the new legislation commences and while the Guidelines still apply, non-state schools in Queensland do not have to make any urgent compliance or governance changes but instead, should be aware of the status of the 2017 Act and what the reforms will mean for their accreditation and governance requirements in the future.

William Kelly

William is a Legal Research Coordinator at CompliSpace. He assists with drafting and reviewing policies and procedures, as directed, for CompliSpace clients as well as writing regular articles for the School Governance blog. William is a lawyer and an officer of the Supreme Court of Victoria.