It is essential that all primary schools understand that jurisdictional registration standards reflect a continuing compliance obligation, not a hurdle to be jumped every four or five years. All schools should not just rely on having policies and procedures to meet their registration requirements, they must also take steps to ensure that those policies and procedures are understood and implemented and that they are continually compliant. The mad scramble to get a school’s house in order in the two to three months pre a registration visit can take an immense toll on the executive and staff.

What are the Compliance and Registration Issues?

Jurisdictional registration standards apply to all non-government schools regardless of size, denomination, education philosophy or the gender or age of their students.

Primary schools are not exempt from the same stringent standards expected of much larger K-12 or secondary schools that have budgets that exceed many tens of millions of dollars. Primary schools must meet the same standards with fewer staff and less internal infrastructure.

According to the Treasury Research Institute, the cost of compliance in many industries is proportionately higher for small businesses than it is for large businesses and small primary schools are a prime example. This is because regulations often impose the same ‘fixed compliance costs’ across the board, regardless of a school’s capacity to meet them.

In a series of four articles in 2016, School Governance highlighted what the regulators were looking for when undertaking a registration review of a school. Broadly speaking, regulators look for full compliance with the Australian Education Act 2013 (Cth) and with the local state and territory Acts and Regulations that apply to schools in that jurisdiction.

It was argued that the first requirement for the re-registration audit of a school was to ensure that government funding is being spent (or will be spent) to meet the general recurrent costs of providing education programs for the students of the school. This is a concept that would be hard to refute as it is a major requirement of the Australian Education Act.

Although the regulators’ requirements vary slightly in each jurisdiction, the regulators have the ability and the authority to interpret their education ministers’ standards by developing other requirements.

Regulators are acutely aware that they need to look under the surface and ensure that there is evidence of compliance. Many regulators publish information on the evidence that they are looking for. The evidence of compliance or ‘prove that you are compliant’ requirements cannot just be invented at short notice.

Common evidence requirements might include records of training of staff in key policy areas, records of breaches of policies such as child protection have been acted on and records of working with children checks or equivalent. This evidence has to have coherence and stretch backwards in time. It cannot just be this year’s records.

Beyond Policies and Procedures – ‘the Who, the How, the When, the Where and the What’

Other evidence includes clear information about ‘the who, the how, the when, the where and the what’ of compliance. Using the example of staff training:

• Who keeps the training records and who attends the training?
• How and where are the records kept and how does your school ensure that it has accurate records of who attended? How and where was the training delivered?
• When was the training conducted?
• Where is the evaluation of training by participants such as evaluation forms?
• What did you do about those who could not attend?

Beyond Policies and Procedures – School Culture

The regulators not only look at policies and procedures but they seek to engage closely with each school to examine and understand the school culture.  They want to ensure that schools are creating a ‘culture of compliance’ by providing quality education and teach to the requirements of an approved curriculum, suitable standards of discipline and behaviour management, a demonstrable high level of duty of care and child protection and that schools have valid processes for the screening of and employment of staff and volunteers. Regulators are looking beyond whether a school has a compliant policy to ask questions such as:

• What are you doing to create a child safe culture?
• What are you doing to ensure that you have a culture that promotes workplace safety?

Governance Standards

Increasingly, school regulators are concerned that schools meet appropriate governance standards. This includes ensuring the suitability of persons involved in the management of the school such as governing body directors and school principals. Reference is often made to the published guidance on governance standards from organisations such as:

• the ACNC (Australian Charities and Not for Profits) Governance Standards,
• Australian Securities and Investments Commission guidance on conflicts of interest and related party transactions
• the Corporations Act requirements (for example the duties of directors)
• the Australian Securities Exchange, ASX Corporate Governance Principles.

Risk Management

School regulators are also looking to see that schools have systems and processes in place for the identification and management of risk. This usually includes a risk management framework and overarching risk management policy, a risk register or registers, evidence that risk controls have been implemented and risks have been regularly reviewed and updated. They also want to know whether school governing bodies and school executives have been engaged in the risk management processes through (for example) receiving reports, examining operational and strategic risks and reviewing the effectiveness of risk controls.

Complaints Handling and Other (Often Forgotten) Compliance Requirements

Many regulators are making it a mandatory requirement for schools to have a system in place for complaints handling including making a complaints handling process and policy available to the school community and being able to show that there is a process in place for managing complaints in an effective and timely manner. There has been a renewed emphasis on complaints handling particularly in relation to making sure that the school community has information about how to make a complaint about teacher misconduct and how the school will deal with these.

Finally, regulators check to ensure that each school is compliant with other Acts that pertain to the day-to-day and ongoing management of the school such as privacy, discrimination, Overseas Students CRICOS registration requirements, whistleblower legislation, the Building Code of Australia, environmental and planning legislation, immunisation, work, health and safety and rules of incorporation or association.

So, for most primary schools that do not practise ongoing compliance, registration renewals can be a very stressful time, with principals, administration staff and teachers all becoming risk and compliance managers overnight. They can be scrambling to find documents, policies, training data and more, all the while ensuring that their documentation and practices meet the ever-changing requirements.

What are the Risks?

In another School Governance article from earlier this year, we highlighted the top five compliance risks for small businesses in a ‘schools version’ and suggested that primary schools would be well-advised to address these compliance issues in order to remain compliant with registration requirements:

1. Not Understanding Legal Requirements: Schools are subject to many of the same employment, work safety, environmental and financial regulations as any other business, but they also have to deal with increasingly complex registration and child safety requirements.
2. Not Properly Vetting and Classifying Staff: In schools, a poor hiring choice can have a devastating impact on teaching and learning and reputation. Hiring an unregistered teacher or someone with an expired Working with Children Check could severely affect the duration of a school’s registration.
3. Losing Track of Paperwork: Most small schools don’t have a dedicated HR Department, and hence don’t have a dedicated HR system. Those things that are recorded probably won’t be recorded well.
4. Not Keeping Up-to-Date:. Many state registration bodies update their registration requirements states and territories on a regular basis and some states such as Victoria, New South Wales and Western Australia do so annually. All Australian jurisdictions are in the process of amending their child protection requirements.
5. Trying to Do Everything Yourself: Work overload might not be too bad if what you’re overloaded with is just more teaching. In reality, it is usually more paperwork or more legal work-basically a greater compliance burden. In small primary schools, where roles are less defined and everyone has to wear multiple hats, the load may be even heavier.

“These examples are just the tip of the iceberg. Schools are one of the most heavily regulated industries in the country, and changes to those regulations come not only frequently but quietly. Many small schools won’t even know what they’re supposed to be doing until they get ‘busted’ for doing it wrongly.”

Summary

Across the board, as a general summary, all registered non-government primary schools, like all other schools, who report to a regulator in their jurisdiction must:

• observe the standards (where they apply) throughout the period of their registration
• comply with any conditions and directions given by the regulator
• provide information regarding the day-to-day management and ongoing viability of the school within the time parameters determined by the regulator.

If primary schools accept government funding and if they are serious about providing quality education in a safe and caring environment, then they need to remain compliant - and should be trying to remain continually compliant, not just reviewing policies and procedures in the lead up to their next registration visit.

Registration Help for Primary Schools

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About the Authors

Jonathan Oliver

Jonathan is a Principal Consultant working with CompliSpace education clients. He has more than 10 years experience in the school sector as a teacher, compliance and legal adviser and more recently as a Business Manager. Jonathan has been a solicitor for nearly 30 years and worked in both private practice and community legal centres.

Craig D’cruz

With 37 years of educational experience, Craig D’cruz is the National Education Lead at CompliSpace. Craig provides direction on education matters including new products, program/module content and training. Previously Craig held the roles of Industrial Officer at the Association of Independent Schools of WA, he was the Principal of a K-12 non-government school, Deputy Principal of a systemic non-government school and he has had teaching and leadership experience in both the independent and Catholic school sectors. Craig currently sits on the board of a large non-government school and is a regular presenter on behalf of CompliSpace and other educational bodies on issues relating to school governance, school culture and leadership.