School Compliance with Victoria’s Child Safe Standards

Tabled: 20 June 2019

Audit overview

In 2015, the Victorian Government introduced seven mandatory child safe standards (the child safe standards) for more than 50 000 Victorian organisations that supply services or facilities to children, such as schools, kindergartens, hospitals, churches, and sporting, recreation and youth clubs.

The government introduced the child safe standards in response to the 2013 Betrayal of Trust report from the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, which found that while most children were safe, there were inadequate and inconsistent approaches to child safety across Victoria.

The standards aim to encourage child safe cultures, impose minimum requirements for organisations to prevent child abuse, and highlight that keeping children safe is the shared responsibility of an organisation's decision-makers.

Like other organisations providing services or facilities to children, schools must comply with the child safe standards, which came into effect on 1 January 2016.

Schools must also comply with further child safe standard-related requirements for school registration.

These are 57 requirements detailed in the Ministerial Order No 870—Child Safe Standards—Managing the risk of child abuse in schools (the ministerial order). The requirement for school compliance with the ministerial order commenced on 1 August 2016.

The ministerial order's objectives are for schools to:

  • embed a school culture of 'no tolerance' for child abuse
  • comply with the child safe standards.

Although the ministerial order requirements are mandatory, they are not prescriptive. The government designed them to be flexible to enable schools to apply them in their own setting.

In this audit, we examined:

  • whether the systems and supports that oversee the child safe standards assure school compliance
  • the Department of Education and Training's (the department) role in providing advice to its ministers on the Victorian Registration and Qualifications Authority's (the regulator) performance.

Conclusion

While the child safe standards have been mandatory for three years, not all schools are meeting them. Victorian schools have been working to implement the standards, but the regulator cannot assure itself or its ministers of school compliance, or whether schools have effectively embedded child safe cultures.

Conflicts of interest arise from the department's multiple roles as:

  • a school operator that seeks to gain and maintain registration
  • a reviewer of school compliance with the child safe standards requirements
  • the regulator's staff employer
  • having a representative on the regulator's board
  • the regulator's evaluator.

These conflicts pose a risk to the effectiveness of the governance model for ensuring government schools' compliance with the child safe standards requirements for school registration.

The regulator did not update its approach when it became responsible for regulating the child safe standards requirements in schools in 2016. This has resulted in limited oversight of school compliance, and a lack of transparency and consistency in compliance assessments across the independent, government and Catholic school sectors.

While the child safe standards are challenging to regulate, the issues we identify reinforce the need for an updated approach. Given the fundamental importance of child safety, and Victoria's commitment to the national approach to managing the risk of child sexual abuse, Victoria should now reassess its approach to regulating the standards in schools so they are more completely and consistently applied.

Findings

The regulator's support and guidance to schools on how to comply with the child safe standards

The seven child safe standards and the 57 ministerial order requirements are mandatory for schools, but are also purposefully non-specific to enable them to meet the requirements in a way that fits their own context.

However, despite ministerial expectations that the regulator's assessment process and methodology would be transparent, the regulator purposefully does not inform schools about what constitutes compliance. It instead prioritises the first objective of the ministerial order—to embed a culture of 'no tolerance' for child abuse. The regulator's view is that a codified approach would lead to a focus on compliance checklists rather than schools considering what is needed to improve their culture.

The regulator maintains guidance materials and links to publicly available information for school leaders and governing authorities that aim to help them consider how they can embed the child safe standards within their schools. However, although the majority of the regulator's guidance is intended for schools, it does not directly relate to the 57 ministerial order requirements that schools must comply with to meet registration requirements. Further, while the regulator provided high-level overviews of the child safe standards to schools in 2016 and continues to raise awareness of them, it does not provide training to schools on how to comply with the 57 ministerial order requirements.

The ministerial expectations of the regulator are for it to:

  • provide 'clear guidance and support for educational organisations to successfully implement the child safe standards, and to meet the required standards for registration' (outlined in the 2018 statement of expectations)
  • 'play an important leadership role in informing and educating school system owners and school leaders to understand and implement what is required' (outlined in the letter accompanying the ministerial order).

However, the regulator advises that its responsibilities for providing guidance to schools are shared with the department and also with the Commission for Children and Young People (the commission), as the lead child safety regulator.

As a result, the regulator has not provided criteria to schools showing how it determines compliance or measures their child safe culture, and has not explained to schools the role of the child safe standards-related guidance available on various websites. The regulator also has not provided adequate guidance on all four areas that the Minister for Education identified that schools would benefit from, comprising:

  • the scope and effect of key definitions (referred to as 'terms' in this report)
  • the role and expectations of governing authorities
  • the essential elements of an 'appropriate' school response to the standards
  • ways in which strategies, policies, procedures and practices can be inclusive of the needs of all children, particularly students who are vulnerable due to age, family circumstances, abilities, or Indigenous, cultural or linguistic background.

This lack of specific and comprehensive information for schools increases the risk that they are applying the standards inconsistently.

The regulator's assurance of school compliance

Lack of authority over review bodies

The regulator's current approach to regulating school registration reflects the ministerial expectation in 2006, when it was first established.

In the 2006 ministerial statement of expectations, the Minister for Education stated that the regulator would conduct initial school registration assessments. The statement highlighted that the department, and organisations such as the Catholic Education Commission of Victoria (CECV) and the Association of Independent Schools Victoria (now Independent Schools Victoria), would apply to the regulator for licenses to manage ongoing quality assurance of school compliance. The expectation was that the regulator would delegate its functions for managing ongoing quality assurance. The regulator retains the overall responsibility for ensuring schools comply with the prescribed minimum standards for school registration (the minimum standards).

The regulator conducts assessments for initial school registration. However, the regulator did not fully meet the ministerial expectation on licensing third parties to manage ongoing quality assurance of school compliance. Instead of issuing licenses and delegating its functions for independent schools, the regulator advised that after considering a number of options, it contracted a panel of providers to monitor compliance on its behalf, which it considered to be the more appropriate model. These providers then contract individual compliance assessors.

Instead of licensing CECV and the department, it also chose to appoint them in 2008 and 2009 respectively as review bodies to monitor ongoing compliance of their schools on its behalf. The department and CECV then engaged external companies that contracted compliance assessors to undertake the compliance monitoring work.

Even though the regulator retains responsibility for assuring school compliance, it has relied on arrangements set out in non-binding Memorandums of Understanding (MOU) with its review bodies to do so. The regulator does not require its review bodies to meet requirements that would lead to a consistent compliance assessment approach.

The regulator advises that at the time, the department told it to establish arrangements for assessing compliance with the minimum standards that worked within the existing school assurance models. However, CECV's and the department's assurance models were designed for a different function—to meet their responsibilities for driving school improvement. Under this arrangement, the regulator did not specify its expectations of its review bodies in relation to:

  • compliance assessment models, including evidence requirements to inform judgements on compliance
  • reporting arrangements to the regulator, including data and evidence
  • evaluation of its review bodies.

The regulator's appointment letters for its review bodies also do not specify the conditions of appointment or their duration, or at which point it will review the appointment decision.

Addressing these gaps would help manage the conflict of interest created by the department being accountable to the regulator as a review body and an operator of schools seeking to gain registration, while also being responsible for assessing the regulator's performance and employing its staff.

Inconsistent compliance assessment

The regulator does not have a documented compliance framework outlining expectations for how it and the various review bodies and contractors should consistently assess schools' compliance with the child safe standards. For example, the regulator has not documented:

  • criteria to be used and evidence to be identified by all assessors to determine whether a school complies with each of the 57 ministerial order requirements
  • consistent assessment checklists
  • expected processes for quality assuring school assessments
  • expected processes for responding to potential breaches of the 57 requirements.

As a result, we found that the regulator, CECV and the department:

  • use different checklists to assess compliance—some of which change the meaning of ministerial order requirements
  • assess school compliance with varying frequency
  • rely inconsistently on schools' self-attestations of compliance
  • vary in the extent to which they consider ministerial order requirements
  • use inconsistent compliance assessment methods.

The regulator's current approach of not specifying its compliance assessment requirements undermines its ability to satisfy itself that schools comply with the ministerial order requirements.

It also provides limited transparency to schools about the regulatory assessment process and assessment methodology used. In the 2018 statement of expectations for the regulator, the Minister for Education and the Minister for Training and Skills detailed their expectation that the regulator would 'provide information to regulated entities to improve the transparency of regulatory assessment processes and methodology to reduce non-compliance', but this has not happened.

The regulator acknowledges that the lack of a documented process presents a risk of losing corporate knowledge in the event of significant staff turnover.

During our audit, the regulator developed a draft school compliance framework. While it outlines the regulator's policy to ensure that its regulatory decisions taken after school reviews are fair, consistent, proportionate and transparent, it does not explain the compliance assessment process and methodology the regulator uses to determine school compliance.

Lack of an evidence-based approach to regulation

In the 2018 statement of expectations for the regulator, the Minister for Education and the Minister for Training and Skills detailed their expectation that the regulator would:

  • continue to strengthen its evidence-based approach to regulation
  • collect relevant data to inform a risk-based approach to allocate resources and effort where the risks are greatest, and to evaluate the outcomes of these approaches.

Based on its own data from independent schools and summary data it receives from CECV and the department, the regulator reports that one third of schools did not comply with all of the 57 ministerial order requirements at the time they were assessed.

Non-compliance does not necessarily mean that children are at immediate risk. It could simply be due to a school governing authority being a day late in providing the required 12-monthly guidance and training to its staff about their child safety obligations (requirement 12.5 a). Alternatively, non-compliance could be as significant as a school not verifying that a new staff member has a Working with Children Check (requirement 10.4 a). The regulator advises that when non-compliance is detected, it is rectified.

Despite the ministers' expectations, the regulator cannot ensure it has implemented an evidence-based regulatory approach or makes risk-based decisions when allocating resources and effort. It is also not able to evaluate outcomes. This is because it lacks complete and consistent data on school compliance to inform its responses.

The regulator has specified for its review bodies that it requires an annual report on compliance and summary compliance statistics for its annual reporting purposes. However, the regulator has not specified its data needs relating to the ministerial order requirements. Therefore, it receives summary statistics from CECV and the department, which do not enable it to identify trends in Catholic and government schools.

Summary school compliance statistics are also of limited value because the data is not comparable. This data is based on the inconsistent assessments carried out by the various review bodies and contracted assessors using different compliance criteria and not necessarily considering all 57 ministerial order requirements. The regulator also has not required its review bodies to quality‑assure their contractors' assessments and does not conduct quality assurance of these assessments itself.

The department's assessment of the regulator's performance against its ministerial statement of expectations

In addition to the department's role as the regulator's review body, it is responsible for advising the Minister for Education and the Minister for Training and Skills on the regulator's performance against its ministerial statement of expectations. This responsibility and its role as a review body that is accountable to the regulator for monitoring compliance of government schools represents a conflict of interest.

The department's first evaluation of the regulator against its statement of expectations is limited, as it only assesses the assistance and advice the regulator provides schools regarding the child safe standards. The department advises that without powers to compel the regulator to provide information, its evaluation only considered publicly available information and advice from the regulator's staff and board. The evaluation identified that the regulator has continued to provide advice and assistance to schools and undertaken a range of stakeholder engagement activities.

The department did not consider the regulator's regulatory approach to assure that schools comply with the child safe standards requirements. It therefore did not consider the ministerial expectations relating to evidence-based decision making, the transparency of the regulator's regulatory assessment processes or the adequacy of its compliance framework.

Despite this, the department highlights that the regulator's recent activities have identified incidences of non-compliance with the child safe standards requirements in all sectors.

We agree with the department's evaluation finding that more needs to be done to ensure greater compliance with the child safe standards, and that the regulator should remain a focus of future statements of expectations. However, we have identified that future statements should clarify the ministerial expectations of the regulator's regulatory approach.

Recommendations

We recommend that the Victorian Registration and Qualifications Authority:

1. update its website to provide an information portal for schools to access guidance on the child safe standards requirements for school registration, and link to other relevant websites as required (see Part 2)

2. improve the transparency of its regulatory assessment processes and methodology to reduce non-compliance and drive consistency in assessment approaches, by:

  • documenting its compliance framework
  • documenting its criteria for determining compliance
  • establishing a quality assurance framework covering all three school sectors, to ensure compliance assessments meet required standards (see Part 3)

3. update its review body appointment processes to ensure it is able to satisfy itself of school compliance, and equivalence and consistency in assessments, by:

  • incorporating a regular review process into all review body appointments
  • updating its Guide for School Review Bodies and its appointment documentation to specify its expectations of its appointed review bodies, including:
    • the nature of assessment models, including reliance on attestations, frequency of assessments, extent of coverage of the requirements and quality assurance
    • data and evidence requirements
    • reporting arrangements to the Victorian Registration and Qualifications Authority, including in relation to data availability (see Part 3)

4. specify information requirements for school review bodies and system administrators for all school sectors, to improve its evidence base, inform its risk-based approaches, and to evaluate outcomes in relation to:

  • school compliance data
  • reporting alleged and actual breaches of the child safe standards, to strengthen its ability to make evidence and risk-based decisions on regulation of the child safe standards (see Part 3).

We recommend that the Department of Education and Training:

5. clarify the ministerial expectations of the Victorian Registration and Qualifications Authority in relation to:

  • its responsibilities for providing guidance to schools on how to implement the child safe standards and what they must do to comply with related requirements for school registration
  • its regulatory approach to assuring compliance with the child safe standards requirements as a minimum standard for registration and its oversight of its appointed review bodies (see Part 4)

6. consider the findings from this audit and its identified areas for improvement in developing future statements of expectations for the Victorian Registration and Qualifications Authority, including performance targets for the regulator to be considered in future evaluations (see Part 4)

7. in light of the Department of Health and Human Services' review of the child safe standards for Victoria, advise the Minister for Education on any amendments required to Ministerial Order 870 and the compliance arrangements for assuring school compliance (see Parts 3 and 4).

Responses to recommendations

We have consulted with the department and the regulator and we considered their views when reaching our audit conclusions. As required by section 16(3) of the Audit Act 1994, we gave a draft copy of this report to those agencies and asked for their submissions or comments. We also provided a copy of the report to the Department of Premier and Cabinet.

The following is a summary of those responses. The full responses are included in Appendix A.

The department accepted all recommendations and the regulator accepted one and partially accepted three recommendations.

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