1.1 Victoria's child safe standards
Child abuse includes sexual and physical abuse, serious emotional or psychological harm, serious neglect, and grooming. It includes both abusive actions carried out by an adult to a child, and also those between children.
In 2015, the Victorian Government introduced the child safe standards as a mandatory requirement for Victorian organisations that provide services or facilities to children. The child safe standards apply to more than 50 000 organisations, such as schools, kindergartens, hospitals, churches, and sporting, recreation and youth clubs.
There are seven child safe standards, as shown in Figure 1A. They aim to encourage child safe cultures, impose minimum requirements for organisations to prevent child abuse, and highlight the shared responsibility among an organisation's decision-makers for keeping children safe. They aim to ensure that organisations promote child safety, prevent child abuse, and properly respond to allegations of child abuse.
Victorian child safe standards
1. strategies to embed an organisational culture of child safety, including through effective leadership arrangements
2. a child safe policy or statement of commitment to child safety
3. a code of conduct that establishes clear expectations for appropriate behaviour with children
4. screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel
5. processes for responding to and reporting suspected child abuse
6. strategies to identify and reduce or remove risks of child abuse
7. strategies to promote the participation and empowerment of children.
Source: VAGO, based on the commission.
Organisations must also apply three principles when addressing the seven standards, as shown in Figure 1B. These principles recognise that while all children are vulnerable, some groups of children face additional risks.
Victoria's child safe standards principles
Principle 1—promoting the cultural safety of Aboriginal children
Principle 2—promoting the cultural safety of children from culturally and/or linguistically diverse backgrounds
Principle 3—promoting the safety of children with a disability.
Source: Child Wellbeing and Safety Act 2005.
Complementary reforms responding to child abuse
The government introduced the child safe standards as part of a suite of reforms responding to the 2013 report Betrayal of Trust—Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations. This inquiry found that while most children were safe, there were inadequate and inconsistent approaches to child safety across Victoria.
The Victorian Government also amended legislation to:
- require organisations to have a clear 'duty of care' to protect children under their watch
- update laws relating to 50 sexual offences, and introduce new laws relating to abuse committed through internet or digital technologies
- strengthen the Working with Children Check application process to enable the assessor to consider any criminal charges laid against an applicant even if they did not result in conviction
- require heads of organisations to report allegations of reportable conduct within three business days.
Regulation of the child safe standards for Victorian organisations
The child safe standards were introduced through an amendment to the Child Wellbeing and Safety Act 2005. Subsequent amendments passed in 2016 established the commission as the overarching regulator of all organisations that are required to comply with the child safe standards.
This Act also required organisations to comply with the standards in two groups with different timeframes. This reflected the expectation that some organisations were more likely to already meet, or partly meet, the standards due to existing service agreements, regulations, or professional codes of conduct. The government included schools in the first group, and required them to comply with the standards by 1 January 2016.
Although they are mandatory, the child safe standards aim to provide organisations that work with children scope to embed the standards into their organisation in a way that suits their setting, such as considering their size, function, and the nature of their interactions with children.
While the commission has powers to enforce the child safe standards, it can request relevant authorities responsible for regulating or funding a group of organisations to take action available to them under their own legislative powers to promote the standards, and require organisations to comply with them. Each relevant authority has different regulatory powers and functions available to it depending on the funding or regulatory relationship between the authority and the organisation.
Under the Child Wellbeing and Safety Act 2005, the regulator is the relevant authority for schools.
Regulation of the child safe standards in Victoria's schools
Under the Education and Training Reform Act 2006 (ETR Act), the regulator was already responsible for assuring school compliance with the prescribed minimum standards that schools must comply with to be registered in Victoria. The minimum standards relate to school governance, enrolment, curriculum and student learning, student welfare, staff employment, and school infrastructure. The regulator is responsible for monitoring these standards and has powers to investigate potential breaches and enforce school compliance. It can directly compel a school to act and can also suspend or cancel a school's registration if it does not address identified non-compliance.
The government amended the ETR Act in 2015 to add the child safe standards requirements to the list of prescribed minimum standards the regulator is responsible for enforcing. To meet the child safe standards requirements, the ETR Act explicitly requires the regulator to ensure schools comply with 57 ministerial order requirements.
As shown in Figure 1C, schools are the only Victorian organisations where their regulator's legislation was amended to require it to enforce the child safe standards requirements under its own legislative powers.
Application of the child safe standards in schools
The amendments require that the regulator must not register a school unless it is satisfied that the school has developed policies, procedures, measures, and practices in accordance with a ministerial order for managing the risk of child abuse.
The Minister for Education issued the ministerial order on 18 December 2015. All schools were required to comply with the ministerial order requirements from 1 August 2016.
Through these amendments, the government required the regulator to use its existing legislative powers to enforce school compliance with the child safe standards requirements through the ministerial order. The regulator is required to ensure schools comply with all 57 ministerial order requirements (outlined in Appendix B) as a prescribed minimum standard for school registration.
The amendments strengthened the regulator's powers, enabling it to review a specific school in exceptional circumstances, and also allowed the regulator to accept enforceable undertakings from schools relating to non-compliance.
Schools are the only Victorian organisations that have additional mandatory requirements outlined in a ministerial order, as a prerequisite for complying with the child safe standards requirements.
The ministerial order's objectives are for schools to:
- embed a school culture of 'no tolerance' for child abuse
- comply with the ministerial order requirements for school registration.
While the child safe standards under the Child Wellbeing and Safety Act 2005 require organisations to manage the risk of child abuse, the government introduced zero tolerance for child abuse in Victorian schools through the ministerial order. It spells out what the standards mean in a school environment. In several places, the ministerial order requires schools to take 'appropriate' actions regarding certain matters, which aims to provide schools flexibility in the manner in which they respond to meet the requirements.
Victorian commitment to review the child safe standards
At the same time as the Victorian Parliamentary Inquiry was underway, the Australian Government established a Royal Commission in response to multiple allegations of sexual abuse of children in institutional contexts.
The Royal Commission began in November 2012 and submitted its final report—Royal Commission into Institutional Responses to Child Sexual Abuse—in December 2017. The Royal Commission found serious failures across Australia's major institutions, as sexual abuse of children had occurred in almost every type of institution in which children reside or attend for educational, recreational, sporting, religious, or cultural activities.
The Royal Commission made a suite of recommendations, including establishing and mandating 10 child safe standards for institutions, as detailed in Appendix C. The Royal Commission designed these to be principle-based and focused on outcomes and changing institutional culture, rather than a set of prescriptive standards or initiatives. This was to enable institutions to apply the standards in a flexible way, informed by the institution's nature and characteristics. The Royal Commission noted that as the risk of child sexual abuse varies between institutions, they need to consider each standard and take time to identify risks that may arise in their context and find ways to mitigate or manage risks.
The Victorian Government accepted in principle the Royal Commission's recommendations that all Victorian institutions engaging in the Royal Commission's definition of 'child-related work' should be required to comply with the Royal Commission's recommended 10 child safe standards.
As Victoria had already mandated the implementation of the seven standards for all organisations delivering services or facilities to children, the government committed to conducting a review in 2018–19. This review will determine whether the government needs to adjust the seven Victorian standards to better align with the Royal Commission's 10 standards.
The Department of Health and Human Services (DHHS) is leading this review on behalf of the Victorian Government and is due to submit its report in June 2019.
1.2 Agency roles and responsibilities
The various agency roles and responsibilities are shown in Figure 1D and explained below.
Roles and responsibilities in relation to schools
Victorian Registration and Qualifications Authority
The regulator as an entity
The regulator is a statutory authority, governed by a board. The board is responsible to the Minister for Education for exercising its functions relating to school education.
The regulator regulates schools and several other education providers that must also comply with the child safe standards requirements, including:
- vocational education and training providers that deliver accredited training to domestic students in Victoria only, or Victoria and Western Australia only
- school education providers
- senior secondary education providers
- school and non-school providers operating as overseas secondary student exchange organisations.
This audit focused on schools only. In relation to schools, the regulator's functions include to:
- register schools
- exercise its powers to ensure that the prescribed minimum standards are maintained
- conduct reviews of schools
- monitor compliance with, and enforce, the prescribed minimum standards.
The regulator's staff, including its Chief Executive Officer (CEO), are employed by the department. The CEO is directly responsible to the department's Secretary for their performance, and reports to the Secretary on the regulator's budget, personnel, and administration.
The regulator charges schools applying for new registrations to cover costs, but relies on the department for its annual funding allocation.
The regulator's role in registering schools
The regulator is Victoria's education and training regulator, responsible for registering schools. All schools must be registered to operate in Victoria. The regulator can only register a school if it is satisfied that it meets the prescribed minimum standards. The ETR Act does not limit how long a registration can be granted for.
In 2018, the regulator listed 2 262 registered schools that provide services to 971 669 students. This comprises:
- 1 549 government schools servicing 618 847 students
- 494 Catholic schools servicing 209 365 students
- 219 independent schools servicing 143 457 students.
The regulator is responsible for satisfying itself that a school meets the prescribed minimum standards for its registration to continue.
Ministerial expectation of the regulator
Statement of expectations
As part of the Victorian Government's Statement of Expectations Framework, relevant ministers issue a statement of expectations to their regulators.
The Minister for Education and the Minister for Training and Skills issued the current statement of expectations to the regulator on 8 January 2018, and it will expire on 30 June 2019. Through this statement, the two ministers expect the regulator to:
- undertake the full range of functions and powers provided to it in the legislation
- continue to strengthen its evidence-based approach to regulation and collect relevant data to inform a risk-based approach to allocate resources and effort to activities where the risks are greatest, and to evaluate the outcomes of these approaches
- provide information to regulated entities to improve the transparency of regulatory assessment processes and methodology to reduce non-compliance
- continue to improve the efficiency and effectiveness of its regulatory activities by considering ways to improve regulatory practice.
In continuing to improve its efficiency and effectiveness, the ministers expected the regulator to 'reduce the regulatory burden on regulated entities, and in particular multi-sector providers by streamlining the regulatory processes. It also includes continuing to engage with stakeholders to inform the ongoing improvement of its regulatory activities'.
This statement of expectations differs considerably from the statement issued in 2006, when the regulator was established. At that time, the Minister for Education and Training expected that the regulator would exercise a 'light touch' approach to regulation, and would be responsible for ensuring providers meet minimum standards, but not for how they do so. The minister also expected that the regulator would not act as a complaints body, but instead that review bodies would deal with complaints that arose from their schools.
The government issued new statements in 2014, 2016, and 2018 under a whole-of-government framework coordinated by the Department of Treasury and Finance.
Letter accompanying the ministerial order
The ministerial expectations in relation to the child safe standards requirements are outlined in the Minister for Education's 2015 letter accompanying the ministerial order in relation to the child safe standards. The minister expects the regulator to implement and enforce the standards—and the 57 ministerial order requirements—through its school registration framework. The minister expects that the regulator will:
- play a key role in monitoring and enforcing compliance with the standards
- play an important leadership role in informing and educating school system owners and school leaders to understand and implement what is required.
As part of the accompanying letter, the minister asked the regulator to assist schools preparing to achieve compliance with the ministerial order requirements when they came into force on 1 August 2016.
How the regulator can satisfy itself of school compliance
The ETR Act requires the regulator to satisfy itself of a school's ongoing compliance with the prescribed minimum standards—including the child safe standards requirements set out in the ministerial order. The ETR Act provides that the regulator can conduct its own reviews or receive a report by a school representative or the department's Secretary in relation to government schools. It can also receive a report by a review body approved to monitor compliance on its behalf.
The ETR Act provides that the regulator can conduct 'general reviews' of schools to determine whether they meet the prescribed minimum standards for registration, or if they have complied with any condition that the regulator imposes.
It also provides that the regulator can conduct 'specific reviews' to determine if a school has met a prescribed minimum standard for registration. The regulator can conduct specific reviews where it believes that:
- urgent action should be taken by a school to address a concern over the safety of students
- in the case of a non-government school, the school is financially unviable or may soon become financially unviable
- exceptional circumstances exist.
The regulator has the power to investigate complaints, and the ETR Act also requires that every registered school is reviewed for compliance with the minimum standards at least every five years.
The regulator conducts reviews for independent schools as part of a targeted compliance assessment on a cyclical basis once every five years. For government and Catholic schools, these 'cyclical reviews' are incorporated into the routine school improvement evaluations at least once every four years. The regulator and its review bodies can also assess schools through 'out-of-cycle reviews'.
The regulator has adopted a different approach to satisfying itself for each school sector. It conducts its own reviews of all independent schools.
The regulator appointed the department on 29 January 2008 to act as a review body and to monitor government schools' compliance on its behalf. The regulator and the department have a current, non-binding MOU that details the agreed arrangements for the department's reviews of government schools and reports to the regulator. The MOU's term is 23 August 2016 to 23 August 2021. The regulator advises that it is reviewing this MOU.
The regulator appointed CECV on 13 February 2009 to act as a review body and to monitor Catholic schools' compliance with the prescribed minimum standards on its behalf. The regulator provided CECV $137 600 in 2009 to develop its review body processes, but it did not approve its review model or require particular assessment criteria to be adopted. The regulator and CECV most recently entered a non-binding MOU on 28 August 2013, the term of which ceased on 31 August 2018. By agreement with the regulator, CECV continues to function as a review body for Catholic schools under the terms of the expired MOU. The regulator and CECV are currently negotiating a new MOU.
The Department of Education and Training
The department and/or its Secretary or nominee have nine separate roles in relation to the child safe standards. These include the Secretary being a member of the regulator's board, roles defined under the Child Wellbeing and Safety Act 2005 relating to the standards, and multiple roles relating to the regulator.
As shown in Figure 1E, the department's roles include responsibility for overseeing the regulator, responsibility for funding and employing the regulator's staff, and accountability to the regulator. These multiple roles create conflicts of interest.
The department's multiple roles in relation to the regulator
Role in governing the regulator
1. Board member
The ETR Act establishes that the department's Secretary, or a nominee, is a member of the regulator's board because of their position as Secretary. In this role, the Secretary or nominee is bound to standard board protocols, including a duty of loyalty and confidentiality to the board.
Roles defined under the Child Wellbeing and Safety Act 2005
2. Relevant authority under the Child Wellbeing and Safety Act 2005
The department is a 'relevant authority' under the Child Wellbeing and Safety Act 2005 because of its responsibility for regulating or providing funding to government schools, approved providers that operate education and care services, post-secondary education institutions and providers, and other entities.
As the regulator is a 'relevant authority', the commission may request it to provide information or to take action to ensure schools comply with the child safe standards.
3. Relevant entity under the Child Wellbeing and Safety Act 2005
The department is a 'relevant entity' under the Child Wellbeing and Safety Act 2005 in a number of capacities, including as a department responsible for its portfolio and as the operator of registered government schools. As a 'relevant entity', the department's schools are required to comply with the child safe standards.
Oversight and policy roles
4. Supports the Minister for Education for Victoria's education and training system
The department is responsible for supporting the Minister for Education in administering the ETR Act—which specifies the arrangements for education and training in Victoria. The department's responsibilities include setting the overall policy for education and training for all Victorian schools.
On behalf of the minister, the department also develops policies, guidelines and directions for all schools. The department supported the minister in developing the ministerial order.
The department is also responsible for advising the minister on the performance of government school councils.
5. Advises relevant ministers on the regulator, including the discharge of its responsibilities
The department is responsible for advising the Minister for Education and the Minister for Training and Skills on matters relating to the regulator, including how it discharges its responsibilities.
Under the Victorian Government's Statement of Expectations Framework for Regulators, the department is required to evaluate the regulator's performance against its ministerial statement of expectations and advise the relevant ministers.
The purpose of the evaluation is to identify opportunities for continuous improvement in the statement of expectations process, the quality of statements and the statement framework.
The department's evaluations should be conducted at least six months before the statement expires, to inform the next statement.
Roles that support and administer the regulator
6. Funds, provides administrative support and employs all the regulator's staff
While the regulator is an independent statutory authority, the department provides the regulator's budget and supports its administration. The department also employs the regulator's staff, including its CEO. The Secretary sets performance plans and conducts reviews of the CEO's performance. The regulator's board informs this process through a letter to the Secretary.
7. Assisting the regulator on governance and administration of its role
As the regulator is a public entity within the department's portfolio, the department is responsible for working with and providing guidance to it, to assist it on matters relating to public administration and governance.
Roles that are accountable to the regulator
8. Proprietor of all government schools
The department is the proprietor of all government schools. Unlike technical and further education institutes and universities, government schools are not separate legal entities from the department. The department is responsible to the Minister for Education for its general conduct and its effective, efficient, and economical management. This includes responsibility for the operation, performance and compliance activities of Victorian government schools. The department employs school principals and develops policies, processes, and procedures that schools must follow.
The department applies to the regulator to register its schools.
9. Approved review body for government schools
As an appointed review body for all government schools, the department monitors compliance of its schools with the prescribed minimum standards—including the ministerial order requirements—and reports on this to the regulator.
Catholic Education Commission of Victoria
CECV is an appointed review body for all Catholic schools, responsible for reviewing and monitoring Catholic schools' compliance with the prescribed minimum standards on the regulator's behalf.
Independent Schools Victoria
Independent Schools Victoria is a not-for-profit organisation dedicated to promoting and developing independent education. It does not manage member schools, but represents, supports and provides services to them. It provides guidance to independent schools in relation to the child safe standards.
Commission for Children and Young People
The commission was established in 2013 as an independent statutory body to promote improvement in policies and practices that affect the safety and wellbeing of Victorian children and young people.
Since 1 January 2017, the commission has been the responsible regulator for the child safe standards in Victoria. The commission is also responsible for reporting publicly on compliance with the child safe standards in its annual report. The commission provides guidance on the standards to Victorian organisations that provide services to children. Noting the standards apply to over 50 000 organisations that vary considerably in size, function and nature, the commission's guidance is non-prescriptive. It explains the importance of the standards, but that there is no 'one size fits all' approach to implementing them. Each organisation should consider how to best apply the standards, taking into account the size and nature of the organisation, the services and activities provided, and the nature of the organisation's interactions with children.
The commission is also responsible for overseeing compliance with the standards. To determine an organisation's compliance, the commission has the powers to:
- request information directly from an organisation
- request information from relevant authorities (such as the regulator) responsible for relevant organisations (such as schools)
- inspect premises with the organisation's consent and with seven days notice.
The regulator includes information on school compliance with the child safe standards requirements in its annual report, which is made available to the commission.
Despite the Child Wellbeing and Safety Act 2005 giving the commission responsibility for enforcing compliance with the child safe standards, it has limited enforcement powers.
The commission can issue an organisation a notice to comply with the standards and can request authorities responsible for regulating them, such as the school regulator, to act to ensure they comply. However, unlike the regulator's powers to enforce the child safe standards requirements through the school registration framework, the commission can only enforce its notice to comply by applying to a court for a declaration of non-compliance, which is subject to 60 penalty units (currently equivalent to $9 671.40), if, for example, a school's non-compliance continues.
The commission's powers and responsibilities overlap with those of the regulator. To address this, the Child Wellbeing and Safety Act 2005 requires the commission to:
- avoid unnecessary duplication with the regulator
- coordinate and expedite monitoring and enforcement activities of school compliance with the child safe standards.
Currently, there is no formal agreement in place to explain how this will be achieved.
Department of Health and Human Services
DHHS supports the Minister for Child Protection, and advised the minister on the development of the child safe standards. It is responsible for the review of the child safe standards currently underway.
1.3 Why this audit is important
Schools have been required to comply with the Victorian child safe standards since 1 January 2016 and with the ministerial order requirements since 1 August 2016. Schools are now entering their fourth year of required compliance with the standards and the third year of required compliance with the ministerial order requirements.
The safety of children is paramount. Given the findings of Victoria's Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations and the Commonwealth's Royal Commission into Institutional Responses to Child Sexual Abuse, it is timely to assess the effectiveness of the regulator's performance and the arrangements in place in Victoria for assuring that schools are complying with the child safe standards.
1.4 What this audit examined and how
This audit focused on the regulator's ability to ensure that all Victorian schools comply with the child safe standards and the department's role in providing advice to its ministers on the regulator's performance.
This audit considered:
- the adequacy of the regulator's school registration framework to ensure schools' compliance with the child safe standards
- the regulator's monitoring, review and assurance activities of all schools, including the effectiveness of its arrangements with approved review bodies
- how the regulator engages with the department to keep the minister informed on schools' compliance with the child safe standards
- how the department evaluates the regulator's performance against the actions taken to achieve the improvements related to the child safe standards outlined in the Minister for Education's and the Minister for Training and Skills' statement of expectation.
We conducted our audit in accordance with section 15 of the Audit Act 1994 and ASAE 3500 Performance Engagements. We complied with the independence and other relevant ethical requirements related to assurance engagements. The cost of this audit was $410 000.
1.5 Report structure
The remainder of this report is structured as follows:
- Part 2 examines the regulator's support and guidance to schools
- Part 3 examines the regulator's assurance of school compliance
- Part 4 examines the department's evaluation of the regulator's performance.