On 1 July 2021, the Victorian Commission for Children and Young People (CCYP) announced new Child Safe Standards for Victoria (new Child Safe Standards), and advised that these new Child Safe Standards would commence on 1 July 2022. All child-related organisations in Victoria are expected to comply with the new Child Safe Standards from the commencement date.

On 31 January 2022, the Minister for Education made a new Ministerial Order under the Education and Training Reform Act 2006 (Vic) – Implementing the Child Safe Standards – Managing the Risk of Child Abuse in Schools and School Boarding Premises (Ministerial Order 1359) – setting out the minimum requirements for compliance by Victorian schools and school boarding premises with the new Child Safe Standards. Compliance with Ministerial Order 1359 will be a registration requirement for all Victorian schools from 1 July 2022.

Under amendments to the Child Wellbeing and Safety Act 2005 (Vic) (CWS Act) that will commence on 1 January 2023, the Victorian Registration and Qualifications Authority (VRQA) will have new powers to monitor and enforce non-government schools’ compliance with the Child Safe Standards, in addition to its existing powers to enforce compliance with Ministerial Order 1359.

To help schools comply with both the Child Safe Standards and Ministerial Order 1359, the Victorian Department of Education and Training has now released guidance for schools, which guidance has been adopted by the VRQA.

VRQA’s New Powers

1 January 2023 will see the commencement of the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 (Vic) (Amending Act). The Amending Act amends the CWS Act to expand the powers of “sector regulators” and “integrated sector regulators” to monitor and enforce compliance with the new Child Safe Standards.

“Sector regulators” are either the prescribed sector regulator for certain entities (such as the Department of Education and Training for government schools, education and care services and children’s services, or the Department of Health and Human Services for hospitals, health centres and out-of-home care services) or, where there is no prescribed sector regulator for a particular sector (such as for entities providing cultural, sporting or recreational services), the CCYP.

“Integrated sector regulators” are the VRQA for non-government schools, school boarding premises, exchange programs and post-secondary education institutions, and any prescribed integrated sector regulator for other relevant entities (none are yet prescribed).

This means that – for non-government schools – the VRQA will be responsible for monitoring and enforcing compliance with the new Child Safe Standards, not the CCYP.

Under the Amending Act, as an integrated sector regulator, the VRQA will have new monitoring and enforcement powers and functions that are prescribed by regulation. While there are no regulations yet that prescribe the VRQA’s monitoring and enforcement powers and functions with respect to the Child Safe Standards – these are likely to be released closer to 1 January 2023 – the VRQA’s powers could include some of the additional powers that the Amending Act gives to the CCYP and other sector regulators. These may include the power to (through an authorised officer):

• after giving notice to the occupier of a premises and receiving consent, or after obtaining a warrant, enter and inspect the premises if the authorised officer reasonably believes that the premises are used to provide services or facilities for children and:
  • search the premises
  • inspect, examine, copy and/or seize documents
  • make enquiries with any person at the premises
  • observe activities being conducted at the premises
  • take photographs or make other recordings
  • request information that the authorised officer reasonably believes is necessary to determine whether or not the school is complying, or has complied, with the new Child Safe Standards
  • interview a child
• issue a notice to produce a document or information that the authorised officer reasonably believes is necessary to determine whether the school is complying with the new Child Safe Standards, or is a body or person that is operating as a school and therefore required to comply with the new Child Safe Standards
• issue a notice to comply, if the VRQA reasonably believes that the school is not complying with the new Child Safe Standards
• if a school fails to comply with a notice to comply, apply to a court for a declaration that the school has failed to comply, an order that it pay a pecuniary penalty and/or an injunction restraining it from operating until the failure to comply is rectified.

Note that the VRQA will still also have all of its powers and functions that relate to registration, including those that relate to compliance with Ministerial Order 1359.

Guidance About How to Comply With Ministerial Order 1359 and the New Child Safe Standards

Ministerial Order 1359 and the new Child Safe Standards greatly expand the policies, procedures, other documentation and practices that a school’s “school governing authority” must develop, endorse and implement for a school and, if it is a boarding school, for its boarding premises. We discussed these new requirements in a previous article.

The VRQA has now released guidance on some aspects of these requirements, and in doing so, has adopted guidance and templates developed by the Department of Education and Training. The landing page for this guidance is here.

In particular, guidance and templates are available for:

• the need to have a Child Safety and Wellbeing Policy and developing a Child Safety and Wellbeing Policy
• the need for child safety risk management and developing a Child Safety Risk Register
• the need for a Child Safety Code of Conduct and developing a Child Safety Code of Conduct
• definitions of terms used in Ministerial Order 1359 and that must be included in a school’s child safety policies and procedures.

While using these templates is not mandatory, given that the VRQA has adopted these as its guidance on how to comply with Ministerial Order 1359, they are the best indicator of what the VRQA expects for compliance.

As there are many more requirements in Ministerial Order 1359, additional guidance – and perhaps more templates – are likely in the coming months. In particular, the VRQA may provide a compliance checklist in the near future, as it did when the former Ministerial Order 870 commenced.

What Should Schools Do?

Schools still need to comply with Ministerial Order 870 until July 2022.

More registration guidance for schools/school boarding premises is likely in the coming months. Schools should keep an eye out for this.

In the meantime, however, school governing authorities should prepare for the commencement of Ministerial Order 1359 by considering the guidance set out on the VRQA website and our previous article, reviewing the school’s/school boarding premises’ current child safety policies and procedures and commencing work on required changes or additions to get ready for implementation.