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.
Principle 6 requires schools to have a complaints handling system that:
Standard 9 requires information obtained from complaints to be used for continuous improvement.
Read alone, Principle 6 raises more questions than it provides answers:
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.
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:
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.
So, what makes a complaints system “child-focused”?
The National Guide states that a child-focused complaints system should seek to achieve the following:
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.
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:
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.
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.
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).
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.
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.
Procedural fairness is integral to any investigative process. To ensure students receive procedural fairness, the process must:
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.
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:
Guideline 8 provides a thorough explanation of, and guidance in relation to, these concepts.
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:
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 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.