Having complaints handling policies and procedures is a legal requirement for schools across Australia but ensuring compliance can be complex. In addition to being mandated as a pre-condition for registration under state Education Acts, complaints handling obligations involve a myriad of ancillary legislative and regulatory obligations such as those relating to privacy, overseas students, boarding facilities, whistleblowing and child protection. To add to the confusion, the legal framework for complaints handling is inconsistent across jurisdictions.

However, the recent annual progress reports relating to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) indicate that jurisdictions are working towards having a more nationally consistent regulatory framework, including for complaints handling. The recent changes to the non-government school registration standards in Western Australia (WA Registration Standards), which were discussed in our previous article, are an example of this and are an indicator of what is to come in other jurisdictions with respect to complaints handling.

Previously, the WA Registration Standards referenced the Australian Standard for Complaints Management in Organizations AUS/NZ [AS/NZS 10002:2014] as the benchmark for compliance with the requirement for schools to have complaints policies and procedures (Standard 11). The new Standard, Standard 9, now requires schools to “implement relevant aspects of Principles 6 and 9” of the National Principles for Child Safe Organisations (National Principles) and references the complaint handling guide produced by the National Office for Child Safety (National Guide).

As all jurisdictions have committed to implementing the National Principles and to make compliance with these mandatory for child-related organisations, it is likely that other states will also benchmark complaints handling obligations against the National Principles in the future.

The National Principles

Principle 6 requires schools to have a complaints handling system that:

• is child-focused, culturally safe and accessible
• assigns clear responsibilities to key individuals to handle complaints, breaches of relevant policies or the school’s Code of Conduct, and report complaints and concerns to relevant authorities
• describes approaches to handling different types of complaints
• is understood by children and young people, staff, families and volunteers
• ensures reporting, record keeping, privacy and employment law obligations are met.

Standard 9 requires information obtained from complaints to be used for continuous improvement.

Read alone, Principle 6 raises more questions than it provides answers:

• What does a “child-focused” complaints handling system look like?
• What are the relevant reporting, record keeping, privacy and employment law obligations?
• What constitutes a complaint and how are they required to be handled?
• Does Principle 6 apply only to the system for managing complaints about child protection incidents, concerns or Child Safe Code of Conduct breaches that occur at a school or that involve its staff, volunteers or contractors (child protection-related complaints) or to a school’s complaints handling system as a whole?

Thankfully, the National Guide provides additional guidance on the requirements of the National Principles with respect to complaints handling. The National Guide is made up of nine separate guidelines, each comprising distinct components of an effective complaints management system that represents best practice.

At 140 pages, it is a long read. Below is a high-level overview of the essential elements of complaints handling, provided by the National Guide.

What is a Complaint?

The definition seems intuitive and obvious, yet it is not specifically defined in any relevant legislation or regulation that applies to non-government schools. Many states use the term complaints and grievances interchangeably, with no definition of either word. But a prescribed definition is important from a compliance perspective. Schools need to know exactly what types of information their system needs to be capturing and managing.

The National Guide provides the following definition of complaint:

“A complaint can include expressions of dissatisfaction about an organisation related to one or more of the following:

• its services or dealings with individuals
• allegations about the conduct of its staff, volunteers or other individuals engaged by the organisation
• another child or young person at the organisation, or the handling of a prior concern. “

Complaints can be initiated by a child or young person, or by an adult on their behalf, with or without the child or young person’s knowledge.

This means that complaints include but are not limited to child-protection related complaints, and that the requirements of National Principle 6 apply to a school’s complaints handling system as a whole.

Child-Focused Complaints System

So, what makes a complaints system “child-focused”?

The National Guide states that a child-focused complaints system should seek to achieve the following:

1. The rights, safety and wellbeing of children and young people are promoted.
2. Complaints-handling system is accessible and responsive to the needs to fall children and young people and their parents/ carers.
3. Complaints are dealt with promptly, thoroughly and fairly.

In short, it is about upholding the rights and maintaining the safety of children and young persons. The Nine Guidelines are intended to assist schools in creating a system that achieves this.

The Nine Guidelines

1. Embedding Children’s Rights, Safety and Wellbeing into the Complaints Process

Guideline 1 is one of the most fundamental components of creating a child-focused complaint system. It captures the idea that schools need to create an environment, not only in which children are safe, but in which they feel safe. Child protection principles and the rights of children and young people, as stated in the United Nation Convention on the Rights of the Child (UNCRC), need to be embedded across the organisation and communicated in a way that students can understand. That way, mechanisms designed to protect them can operate in a substantive way.

With complaints handling, this means ensuring that students know when and how they can make any kind of complaint, including child protection-related complaints, and feel safe doing so. This would involve:

• building the complaints handling system into a broader child safe governance system
• consideration for what is best for the student (UNCRC Article 3), meaning participation should:
  • bring students no harm
  • be voluntary and informed, responsive, respectful and meaningful
  • account for any ethical considerations at the outset and as the process unfolds
  • address power imbalances
• recognising, respecting and protecting the human rights of children and young people, including:
  • their right to participate, including having equal opportunity to participate and the choice to not participate
  • recognising their capacity to participate and that they have a critical and unique perspective on their own lives
• encouraging students to participate and speak up in a variety of situations
• considering and assessing their capacity to receive information and be involved in the complaints process (Article 12), including taking all necessary measures to ensure students with disabilities have equal access to participation (Article 7)
• taking all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2. Reporting Responsibilities

Part of complaints handling is the legal obligation to report certain complaints or concerning behaviours, both internally and externally. This aspect of complaints handling will apply in particular to child protection-related complaints.

Policies and procedures need to include clear reporting structures, which include what needs to be reported and to whom. Not only does this protect the school from civil or criminal liability, but it is essential to protecting the safety of students at the school.

3. Sharing Information and Communicating with Stakeholders

Guideline 3 emphasises the need to clearly articulate the importance of information sharing in promoting the safety, welfare and wellbeing of children and young people within the school’s complaints handling policy. It needs to be considered with Guideline 4, which deals with confidentiality and privacy.

Information sharing can be complicated, particularly when it involves child protection-related complaints. Sometimes it will be mandated by law. Other times, it involves an assessment of the appropriateness of sharing information, including deciding the appropriate parties to share information with. This might involve considering any conflicting interests of the parties involved.

Guideline 3, together with Guideline 4, provides some clarity on these issues. It provides key considerations for information sharing, including what can be shared, why information is shared, and the key issues a complaints handling policy should address with respect to information sharing.

4. Confidentiality and Privacy

Guideline 4 explains the importance of confidentiality, including when and why it would be necessary. It also explores legal considerations with respect to privacy, and how this interacts with information sharing.

Confidentiality and privacy is key to creating a safe environment in which students feel comfortable to speak up. It also protects all parties’ rights to procedural fairness (which is discussed in Guideline 7).

5. Managing Risks – Complaints and Incidents

Child-focused risk management is about proactively mitigating potential risks of a kind that children and young people might be exposed to in the school environment. The National Guide states that “organisations must operate on the assumption that everybody who works with children and young people can pose some level of risk to them”.

An effective risk management plan is one that is practical and understood by all staff and volunteers. Listening to what children and young people have to say about what they like and do not like about an organisation, how things could be better, and what makes them feel safe and unsafe in the organisation, will be critical to shaping risk management strategy.

It is also critical for the school’s leadership to implement strategies to create a culture in which risk identification and management are seen to be an integral part of the day-to-day operations of the school, rather than an ‘add-on’ or solely the responsibility of managers.

The interaction between risk management and the receipt of complaints was discussed in our recent article.

Again, this Guideline will be particularly important for child protection-related complaints.

6. Conducting Investigations Involving Children and Young People

Conducting investigations of complaints, and particularly child protection-related complaints, can be a delicate matter. However, all complaints involving children and young people need to be taken seriously, and properly investigated. The complaint investigation needs to be approached without bias and all parties involved need to be afforded procedural fairness.

Schools therefore need to have a documented investigation procedure to ensure investigations are carried out in a structured, thorough, fair and proportionate way. It also needs to consider the specific needs of any students involved to ensure they understand the process.

Guideline 6 provides detailed guidance on the investigative process from start to finish, including relevant considerations for reporting on and communicating findings.

7. Being Fair and Objective

Procedural fairness is integral to any investigative process. To ensure students receive procedural fairness, the process must:

• avoid misconceptions and assumptions
• address impartiality and bias
• recognise and manage conflicts of interest, including potential conflicts of interest
• afford fairness to the subject of the complaint.

Having a fair process is crucial to building trust with students and links back to creating a safe school environment in which students feel safe to participate.

8. Explaining Outcomes and Review Options

Procedural fairness also requires that there be a prescribed set of available outcomes, which are made known to the parties involved, and reasons be provided for decisions made in relation to the investigation or resolution of a complaint.

This achieves:

• consistent outcomes
• managed expectations
• transparency in the investigative and decision-making process, which leads to an increased likelihood of satisfaction with the outcome.

Guideline 8 provides a thorough explanation of, and guidance in relation to, these concepts.

9. Record Keeping and Complaints Data

Guideline 9 provides standards for how records should be kept so that they comply with legal, contractual or other record keeping obligations. It also explains the value of complaints in the continuous improvement of the school’s services.

Key things to note:

• Information is provided to students and their families about what kinds of records are kept by the school, for how long, and how they can access them now or in the future.
• Full and accurate records about complaints involving children and young people is a fundamental rights issue.
• The requirements for record keeping and related processes need to be clearly outlined in the school’s complaints handling policies and procedures.

About the Authors

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Jennifer Ma

Jennifer is a content development assistant in our Sydney Office. She recently graduated from the Juris Doctor, from the University of Sydney and completed her final semester at the University of Vienna. After completing an undergraduate degree in the field of medical sciences at Sydney University, and commencing an honours in neuroscience, she decided that path wasn’t for her. She is now convinced about her passion for the law, and has experience assisting in a variety of legal matters from commercial law, including litigation, to family law.