The Victorian Registration and Qualifications Authority (VRQA) has announced that updated Guidelines to the Minimum Standards and Requirements for School Registration (VRQA Guidelines) will commence on 1 January 2021 for new school registrations and 1 July 2021 for existing registered schools.

The VRQA says that it will work with schools in the lead-up to 1 July 2021 to help them understand the new requirements and in the interim refers them to FAQ (click here to download) that answer questions that were raised during the consultation process.

The VRQA’s announcement focuses on early learning centres, as do the FAQ. At the end of the FAQ, however, there is a section that summarises the “other, less substantive changes made to the Guidelines”. Those relevant to non-government schools are as follows:

• including details relating to the grooming offence
• clarifying evidence requirements relating to governing body structures and details
• clarifying the differences in processes for government, Catholic and independent schools seeking to amend registration details — these clarifications do not change the essential point that non-Catholic schools should apply to the VRQA and Catholic schools should apply to the Catholic Education Commission of Victoria (CECV).

Catholic schools will need to comply with the updated VRQA Guidelines. At this stage it is not known whether the CECV will impose additional requirements on Catholic schools.

Early Learning Centres

For the purposes of school registration, an early learning centre is an approved education and care service under the Education and Care Services National Law (Victoria) that provides education and care to children, including 3 or 4-year-old kindergarten, is not conducted on a for-profit basis and is a feeder for enrolments to the school. The VRQA’s FAQ emphasise that it is not sufficient to establish a playgroup; either 3 year-old or 4 year-old kindergarten must be delivered.

The Education and Training Reform Regulations 2017 (Vic) (ETR Regulations) were amended in 2019 to allow schools that operate or intend to operate an early learning centre to use school money or property, other than Commonwealth or State Government funding, to conduct their early learning centre. The explanatory notes to the updated VRQA Guidelines include a statement that a co-educational early learning centre will be considered to be a feeder for enrolments for a single-sex school, provided children at the early learning centre enrol at the school.

The new evidence requirements for schools that operate, or intend to operate an early learning centre are as follows:

• The school’s constitution or rules of association must provide for the delivery of early learning centre services.

In the FAQ, the VRQA states that it expects schools to review their constitution or rules of association as a priority and commence making any changes in a timely manner. The VRQA acknowledges that approval and subsequent publication on the website of the Australian Charities and Not-for-profits Commission can take some time and states that it will not commence compliance monitoring and enforcement of this requirement until 1 July 2021.

• The school must provide evidence of:
   
  • a published statement to the effect that a proportion of funds raised or fees collected by the school may be used to support the operation of the early learning centre. The statement must be published in general policies, such as the enrolment policy, enrolment agreement, fee schedule or policy, and promotional materials.
  • separate financial records for the school and the early learning centre, with cross-subsidisation clearly identifiable
  • copies of any loan or security arrangements the school has entered into for the purpose of constructing or maintaining infrastructure for the early learning centre or funding the early learning centre.

The explanatory notes state that:

• There is no requirement for separate bank accounts.
• Any loan arrangements for constructing or maintaining the infrastructure for the early learning centre must not be a risk to the school’s financial viability, either in providing security for, or servicing the loan.
• Schools do not have to provide a specific proportion or dollar amount in their published statements. The VRQA notes, however, that schools have separate disclosure requirements under Commonwealth and Victorian consumer and not-for-profit laws that may require them to disclose a dollar amount or percentage of privately generated funds that are directed to the early learning centre.

In the FAQ, the VRQA suggests that schools seek their own financial and legal advice and that they develop a method for pro-rata apportionment of costs. Schools should be able to clearly explain the basis on which operating costs have been apportioned between the school and the early learning centre.

Clarifying Evidence Requirements Relating to Governing Body Structures and Details

The main changes to the evidence requirements regarding governing body structures and details are:

• The requirement for details of the members of the company now explicitly refers to schools that are incorporated associations as well as those that are companies limited by guarantee.

• The requirement for the most recent financial statement for the company or association, which must be audited, now also stipulates that the statement is to be audited by a registered auditor.

• The requirement for a school’s business plan to be certified by a qualified accountant has been strengthened by requiring that the business plan be validated by an independent qualified accountant who is not employed by or associated with the school or a related entity. The accountant should provide a signed statement that confirms the reasonableness of the business plan and validates any underlying assumptions.

Changes to Wording of the Evidence Requirements Regarding Not-for-profit Status

In addition to the new requirements concerning early learning centres, some changes have been made to the wording regarding agreements, contracts or arrangements with third parties, which now encompasses “related entities and/or affiliated organisations or persons” (new words underlined).

The explanatory notes, which previously stated that any loan agreements or arrangements for the delivery of services to the school and its students must be on commercial terms and not constitute a prohibited agreement or arrangement within the meaning of regulation 5 of the Education and Training Reform Regulations 2017 (Vic) (ETR Regulations) now specifically also include the stipulation that the agreements or arrangements do not otherwise breach the not-for-profit requirements in regulation 7 of the ETR Regulations.

References to Grooming Offence

It should be kept in mind that the Victorian minimum standards for registration, and other requirements for schools, include the requirements to have policies, procedures, measures and practices in accordance with Ministerial Order No. 870 Child Safe Standards – Managing the risk of child abuse in schools.

Ministerial Order 870 requires that schools implement minimum child safe standards, including (in clause 5):

• screening, supervision, training and other human resources practices that reduce the risk of child abuse in accordance with clause 10
• procedures for responding and reporting suspected child abuse in accordance with clause 11
• strategies to identify and reduce or remove risks of child abuse in accordance with clause 12.

“Child abuse” is specifically defined in Ministerial Order No. 870 to include the offence of grooming under section 49M of the Crimes Act 1958 (Vic) (Crimes Act). That section makes it a criminal offence for an adult to groom a child, aged under 18, or a person who has care, supervision or authority for a child.

The current version of the VRQA Guidelines is intended to ensure that schools meet these aspects of Ministerial Order 870 by requiring, in relation to child safety, that schools provide evidence of their policies and procedures for ensuring all staff understand:

• mandatory reporting
• the failure to disclose offence
• the failure to protect offence.

This means, in effect, that schools must provide training to staff and volunteers in relation to these matters.

In the updated VRQA Guidelines, the grooming offence under the Crimes Act has been added to this list. This will mean that schools need, in effect, to provide training to ensure that their staff and volunteers understand the grooming offence. It will be particularly important for schools that do not already include information on the grooming offences in their child abuse identification and response/reporting training to include, in that training, information about what kinds of conduct is included in the grooming offence, that this conduct must be reported to DHHS Child Protection under mandatory reporting obligations and to Police the failure to disclose offence, and that the failure to protect offence requires staff and volunteers to protect students from grooming.

Finally, schools should note that a Review of the Victorian Child Safe Standards recommended that the Victorian Child Safe Standards be amended to align with the National Principles for Child Safe Organisations. The Victorian Government has endorsed this recommendation but has not yet provided a timeframe by which this will occur. This process will involve amending the Victorian Child Safe Standards first, followed by corresponding amendments to the Child Wellbeing and Safety Act 2005 (Vic) at a later date. Ministerial Order 870 will then also need to be amended to align with the new Child Safe Standards.

The review recommended that organisations be given at least 12 months to transition to the new Child Safe Standards once they are released. Given that the timeframe by which schools will need to comply with the new Child Safe Standards and an amended Ministerial Order is uncertain, and likely to be some months away, it is important to remember that, in the meantime, the current Victorian Child Safe Standards are still law in Victoria and the current version of Ministerial Order No. 870 continues to apply.

Summary

Schools that intend to take advantage of the new permission to conduct an early learning centre as a feeder for school enrolments should ensure that they commence planning any changes that are required to their constitutions or rules of association so they are able to comply with the new evidence requirements by the commencement date of 1 July 2021.

Schools should also ensure that they comply with the other requirements outlined above by 1 July 2021.

About the Authors

Helen Juillerat

Helen is a Legal Research Consultant at CompliSpace. She completed a Bachelor of Laws degree at the University of Queensland and has worked in legal publishing and in roles in the public higher education and health sectors focusing on governance, policy and compliance.

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.