School Compliance with Victoria’s Child Safe Standards

Tabled: 20 June 2019

3 The regulator's assurance of school compliance

To assure the minister that schools comply with the minimum standards for registration, the regulator must first satisfy itself that schools comply with the 57 ministerial order requirements. To do so, the regulator needs to specify how it determines whether a school complies. This is also important for assuring the commission that schools comply with the seven child safe standards.

Where it has engaged external review bodies or contractors to monitor compliance on its behalf, the regulator needs to establish clear governance arrangements that clarify the roles and responsibilities of the different organisations involved and specify the information it requires from them to demonstrate that a school complies.

This Part focuses on how the regulator assures itself and provides assurance to the Minister for Education and the commission that schools comply with the child safe standards.

3.1 Conclusion

The regulator's current approach to regulating school registration largely reflects the ministerial expectation of it in 2006 when it was first established. Its approach has not changed to reflect the introduction of the child safe standards requirements in 2015 or to respond to the 2018 ministerial expectation for it to monitor and enforce compliance.

The regulator reports that one third of schools did not comply with the 57 ministerial order requirements when assessed. However, its compliance statistics are not reliable because the data for each of the government, Catholic and independent sectors is not comparable. It is based on assessments that lack compliance criteria to guide them and that vary in the extent to which schools are assessed against all 57 requirements. The regulator has neither required its review bodies to quality assure their contractors' assessments, nor conducted quality assurance of these assessments itself.

Without access to CECV's and the department's school compliance data, the regulator cannot conduct its own analysis of all data across government, Catholic and independent schools to identify trends and risks. The regulator can only gain an insight into risks from schools it investigates for potential ministerial order breaches.

It is timely for the regulator to confirm the ministerial expectation of it to monitor and enforce the child safe standards requirements through the appointment of review bodies. Specifying its criteria for assessing compliance, establishing conditions for the review body appointments, and improving its oversight of their performance will strengthen the regulator's ability to satisfy itself of compliance with the child safe standards requirements and better target its regulatory activities.

3.2 Governance arrangements

The ETR Act and the ministerial order established the regulator's responsibility for monitoring and enforcing the child safe standards requirements through its school registration framework.

Governance arrangements consistent with the 2006 statement of expectations

The regulator's current monitoring and enforcement arrangements for the child safe standards reflect the Minister for Education's 2006 statement of expectations for the regulator when it was first established.

The statement specified that the regulator would have responsibility for the initial registration of education and training providers. However, the minister noted that the regulator has 'the power to delegate its ongoing quality assurance responsibilities'. Section 4.2.7 of the ETR Act enables the regulator to delegate any of its functions or powers (other than the power to delegate), including its function to assure school compliance and the powers to enforce compliance.

In the 2006 statement, the minister detailed that the department, and organisations such as CECV and Independent Schools Victoria, would seek the regulator's approval 'to be licensed to manage ongoing quality assurance' for their schools. The minister expected that under this approval, the regulator would delegate its ongoing quality assurance arrangements. In doing so, the minister expected that the regulator would be responsible for 'ensuring providers meet minimum standards, not for how they do so'. The minister also expected that the regulator would not act as a complaints body and that school system administrators, such as the department, would manage complaints from their schools.

Despite these expectations, the regulator retains the responsibility for satisfying itself that schools comply with the minimum standards for registration.

Consistent with the minister's 2006 expectations, the regulator conducts compliance assessments for initial school registration.

However, the regulator did not fully meet the 2006 ministerial expectation of it in relation to licensing third parties to manage ongoing quality assurance and by delegating its functions or powers to them.

The regulator advised that after considering a number of options, it contracted a panel of providers to monitor compliance of independent schools on its behalf, which it considered to be the more appropriate model. These providers then contract individual compliance assessors to undertake this work, as shown in Figure 3A. The regulator's staff review the assessor's assessment to make the final determination of whether a school complies.

Instead of issuing licenses and delegating its functions for government and Catholic schools, the regulator chose to appoint the department in 2008, and CECV in 2009, as review bodies to monitor ongoing compliance of their schools on its behalf. The department and CECV engage external providers that then contract compliance assessors to undertake the monitoring work. CECV advises that it trains and accredits individual assessors.

Figure 3A
The regulator's outsourcing arrangements for school compliance assessments

The regulator's outsourcing arrangements for school compliance assessments

Source: VAGO.

The regulator also appointed an additional review body in 2014 for its schools, however, it revoked their appointment in September 2017.

The regulator has used two governance documents to establish its accountability arrangements. The first is a letter of appointment that informs the review body of the regulator's decision and defines the functions of the review body. The regulator's appointment letters do not specify the conditions and duration of appointments, or any point at which it will review appointment decisions.

The letters of appointment refer to the regulator's second governance document—an MOU that details the activity to be undertaken, the reporting requirements, and the separate roles and responsibilities. While the regulator's MOUs detail roles and responsibilities, they do not specify the regulator's expectations. As MOUs are formal documents, yet non-binding agreements between the parties, the existing approach prevents the regulator from holding its review bodies accountable for their performance.

The regulator advised 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

Consistent with the 2006 ministerial expectation to not stipulate 'how' the review bodies determine compliance with the child safe standards, neither the appointment letter nor the MOU specify to the review bodies:

  • how they should determine whether a school complies
  • expectations for their compliance assessment models such as school assessment frequency, coverage of assessment, quality assurance and evidentiary requirements
  • reporting requirements including the contexts of compliance reports and data and evidence requirements for assessing compliance against each of the ministerial order requirements
  • requirements for reporting potential standards breaches.
Changes to ministerial expectations of the regulator

The regulator acknowledges that the introduction of the child safe standards requirements changed the ministerial expectations of it. However, the regulator continues to operate under the expectations set out for it in 2006.

Since the updated statement of expectations was issued in 2014, the ministerial expectation of the regulator has been that it will undertake the full range of functions and powers provided to it in the legislation. The ministers now expect it to ensure schools meet the required minimum standards while continuing to improve the efficiency and effectiveness of its regulatory activities by considering ways to improve regulatory practice. The ministers also expect that the regulator will continue to strengthen its evidence-based approach to regulation and improve the transparency of its regulatory assessment processes and methodology to reduce non-compliance.

The regulator recognises that it has not updated its arrangements with its review bodies to support these changed expectations. In 2016, it conducted a governance review, which involved interviews with its board members. One of the issues expressed in interviews was that the review body arrangements are insufficient for the regulator to be satisfied that compliance assessments of schools performed by review bodies meet the regulator's expectations in the MOU.

The regulator can improve its oversight of review bodies to better ensure consistent compliance of schools with the child safe standards requirements by specifying in its arrangements with review bodies:

  • its requirements for the way they assess school compliance to achieve consistency across all schools
  • reporting requirements, including necessary data, to enable it to target areas of non-compliance and monitor trends and performance
  • expected quality assurance processes
  • how it will evaluate review body performance.

Given the regulator has not licenced its review bodies and delegated its functions, and in light of the department's conflicts of interest, it is important that the regulator establishes a transparent regulatory process that supports its responsibility to satisfy itself that schools comply with the minimum standards for registration.

3.3 How the regulator determines if a school is compliant

While the ministerial order requirements are mandatory, they contain language that is open to interpretation. Specific guidance on the criteria the regulator uses to determine whether a school complies with each requirement is important to support consistent assessments, particularly given the range of assessors across various agencies.

However, the regulator has not determined or documented compliance criteria for each of the 57 ministerial order requirements, or the minimum evidence it requires to satisfy itself that all schools comply with them.

How the regulator determines compliance when a school is first registered

The compliance assessment for a new school application is different from an existing school's ongoing compliance assessment. A new school applicant can only demonstrate compliance against all the ministerial order requirements once a school is operational, such as for:

  • requirement 11(2c)—making the school's procedure for reporting suspected child abuse publicly available and accessible to children, school staff, and the wider community
  • requirement 12(5)—ensuring that its school governing authority receives appropriate training and guidance regarding the child safe standards on at least an annual basis.

The regulator's staff conduct compliance assessments of schools applying for their initial registration. Schools present the regulator with their documented policies and procedures and the school's commitment to comply once the school is operational. However, the regulator has not documented how it verifies that a school has enacted their commitment.

The regulator provides its staff a child safe standards checklist for new school applicants, which:

  • repeats the wording from the ministerial order for 53 of the 57 of requirements
  • omits information for ministerial order requirement 10(4) that schools must gather, verify and record information about a person whom it proposes to engage to perform child-connected work 'in accordance with any applicable legal requirement or school policy'
  • omits information for ministerial order requirement 10(5) that a school need not comply with requirement 10(4) if it has already made reasonable efforts to gather, verify and record the information set out in requirements 10(4)(a) to 10(4)(d) about a particular individual within the previous 12 months.

The regulator has updated its checklist to include the omitted requirements in response to our audit.

The regulator does not have a training program to ensure its staff make consistent judgements about compliance. It instead relies on 'on-the-job' experience.

For schools assessed as non-compliant, the regulator provides the applicant school with feedback and a rectification plan. The applicant can submit a revised application within four weeks. Unsuccessful applicants can appeal the regulator's decision through the Victorian Civil and Administrative Tribunal.

The lack of compliance criteria, minimum evidence requirements, guidance on how to follow up on school commitments that they will meet requirements once operational, and training to inform consistent judgements, increases the risk of the regulator's staff inconsistently assessing school registration applications.

We reviewed the regulator's assessments of all 23 new school registration applications made during 2017–18. We identified inconsistencies between assessments. For example, one assessor determined a school to be non-compliant with requirements 1(a) and 1(b) under the standard 'Principle of Inclusion' because the school's child safe policy did not include an explicit reference to 'children that are vulnerable', while another school was assessed as compliant despite also lacking such a reference in their child safe policy.

How the regulator determines a school's ongoing compliance

The flexible yet mandatory ministerial order requirements, and the range of outsourced compliance assessors, amplify the need for clarity on how compliance is determined. Assessors require clear guidance from the regulator on how to conduct their assessments to ensure consistency.

In the absence of compliance criteria, the regulator's review bodies have developed their own compliance checklists for their assessors. We found different checklists in use within each sector, variation in the evidence assessors record, and consequently inconsistent determinations of compliance for the same requirements. The different checklists and varied methodologies mean that schools are not comparably assessed against the ministerial order requirements and are ultimately held to different standards.

Since the introduction of the child safe standards, the regulator has held information sessions for assessors to explain its priorities, respond to assessors' questions, and for assessors to share their experiences in assessing compliance. The regulator advises that it provides training to its own staff, review bodies and individual assessors. However, without compliance criteria and minimum evidence requirements for assessors, the training cannot provide meaningful outcomes that would lead to consistent assessments of school compliance that meet a minimum standard. The regulator also does not require its authorisation or approval of CECV's or the department's individual assessors.

This increases the risk of inconsistent assessments of school compliance.

The regulator's hot review program aims to validate the review body processes implemented, to ensure that the review assessments of compliance are consistent with the regulator's compliance processes and requirements, and that they provide accurate and informed assessments of compliance with the minimum standards.

The regulator has found, through its hot review program, that these risks have materialised. In its 2017 hot review evaluation, the regulator found:

  • inaccuracies in review bodies' assessment information
  • inconsistent approaches to assessing compliance with the minimum standards
  • inconsistent approaches to assessing the implementation of documented policies and procedures, particularly in relation to student welfare
  • that assessors did not have up-to-date knowledge about legislative requirements, particularly in relation to student welfare
  • reviewer conflicts of interest
  • examples where regulator officers were unable to determine how an assessor determined compliance
  • in a small number of cases, areas of non-compliance that the assessors had not identified
  • rushed assessment of some standards, and some that were not covered
  • that assessors were uncertain of the evidence requirements for some minimum standards
  • review body requirements for assessors were not clear, so it was not apparent which, if any, of the compliance requirements required a more thorough and focussed assessment
  • that assessors were not supported by system-wide assessment tools to improve the efficiency and consistency of the review process
  • inconsistency in assessments between CECV regions
  • a lack of clarity around the level and type of training and support provided to the assessors.

During its 2018 evaluation of its hot review program, the regulator found that assessors viewed the advice and support it provided to undertake the compliance check component of the school review as minimal. It also identified that assessors could benefit from a more detailed and explicit briefing, particularly about specific risks to be addressed during the assessments. The regulator advises that it has not yet addressed the deficiencies identified through this evaluation because to do so would result in an increased regulatory burden for its schools and review bodies.

The regulator refers to non-cyclical reviews as 'priority reviews'. The department refers to them as 'pulse checks'.

We randomly selected cyclical review assessments conducted in 2018 from each of the independent, Catholic and government school sectors. Even with a sample size of four out of 104 Catholic school reviews, four out of 421 government school reviews and four out of 47 independent school reviews, we saw variation in the way assessors conduct assessments between sectors. We also found variation in the way compliance is assessed within sectors.

Consistent with the use of different checklists, we found that schools were assessed against a different number of requirements, as discussed in more detail below.

We also found variation in the evidence assessors recorded to support their assessments. In all four of the government school assessments, assessors ticked a box for compliant or non-compliant, but none included comments to substantiate their assessment. In all four of the Catholic school assessments, assessors ticked a box for compliant or non-compliant, but there was variation in the assessors' evidence or comments they documented against each test. While all the regulator's assessors for independent schools included comments to substantiate their assessment, the level of comment detail and evidence relied upon varied between assessments.

This variation is due to the different assessment tools used for school sectors. While all tools provide a box for the assessor to tick compliant or not compliant, they vary in evidence requirements. For independent schools, the regulator's assessment tool provides a column for the assessor to document evidence and another to add a description when non-compliance occurs. For government schools, the department's assessment tool includes a column for assessors to provide comments. For Catholic schools, CECV's Child Safe Standards Assessment Tool provides assessors with a pre-determined sample list of evidence to support each test. It also provides a section for the assessor to document background information on the school or add comments on the school's performance.

As a consequence, the regulator is not able to determine how assessors come to their conclusions on compliance for all schools based on the assessment tools used in each sector.

Variation in school compliance checklists

Each school sector has a different compliance assessment checklist, meaning that schools are not held to the same requirements. Government schools are assessed against the nine high impact requirements identified by the regulator, independent schools against up to 57 depending on the risk rating that the regulator applies, and Catholic schools against 92 tests that are based on the 57 ministerial order requirements.

Independent school checklist

The regulator uses a child safe standards compliance checklist for assessing ongoing compliance of independent schools that is modelled on the 57 ministerial order requirements. The regulator applies a risk-based approach to its assessments. By using a series of indicators outlined in its Provider Risk Framework, the regulator assesses a school's risks and determines how many of the ministerial order requirements it will assess.

Government school checklist

The department has developed two different checklists for its different types of reviews of government schools, including the school assessment checklist and the pulse checklist.

The department uses its school assessment checklist for its cyclical reviews, which assess nine of the ministerial order requirements that the regulator identified as having a high impact if they were not met.

The department uses its pulse checklist for its non-cyclical compliance assessments, which includes only 48 of the 57 requirements. Due to the checklist including different language than that of the ministerial order, the department has changed the meaning for four requirements.

As a result, government schools are not assessed against all of the ministerial order requirements and are assessed differently between cyclical and non-cyclical reviews.

Catholic school checklist

CECV uses a checklist that the regulator provided in 2016. The checklist is structured around the 57 ministerial order requirements and applies a series of 92 tests to represent a collection of the requirements. Based on our analysis, the checklist's 92 tests use different wording, which change the meaning for six of the ministerial order requirements.

Figure 3B provides an example of how CECV's checklist for Catholic schools differs from the requirements. In this example, the ministerial order requires governing authorities to ensure that appropriate guidance and training is provided. However, CECV's assessment also tests members of the governing authority and staffs' understanding of child abuse risks.

Figure 3B
Example of CECV's checklist changing the meaning from the ministerial order requirements

Ministerial order Requirement number

Ministerial order requirement

CECV's checklist tests

Requirement 12 (5) (b)

At least annually, the school governing authority must ensure that appropriate guidance and training is provided to the individual members of the school governing authority and school staff about child abuse risks in the school environment.

Test 1.2—There is a schedule or plan and materials for training to be provided to new staff such as an induction kit.

Test 1.3—There is a schedule or plan for further training to be provided to existing members (of the governing authority) on an annual basis.

Test 1.6—The members of the governing authority understand the child abuse risks in the school environment.

Test 5.3—There is a schedule or plan for further training to be provided to existing staff on an annual basis.

Test 5.6—The staff understand the child abuse risks in the school environment.

Source: Ministerial order and CECV's checklist.

The regulator advises that although it provided the checklist to its review bodies in 2016, with a view to it being used across all three school sectors, it no longer utilises it because the checklist:

  • provided insufficient visibility of school compliance with the child safe standards
  • made the compliance assessment process too onerous.

The regulator advises that it did not formally document its rationale for ceasing to use the checklist. The regulator also advises that it notified the department and CECV that it was using an alternative checklist from 2017 and offered it to them. However, the regulator did not require its review bodies to use a checklist consistent to its own.

In its 2018 evaluation of its hot review program, the regulator's observers identified that CECV was still using its 2016 checklist. It found that the checklist was complex, lengthy and time-consuming to complete. It concluded that the burden on schools could be reduced by using a simpler, more transparent tool. CECV advises that it was not aware that the regulator no longer used the original checklist it provided in 2016, or that the regulator considered it to be inadequate for this purpose.

3.4 Consistency of compliance assessment models

Through their 2018 statement of expectations for the regulator, the Minister for Education and the Minister for Training and Skills explained that their expectation was that the regulator would 'provide information to regulated entities to improve the transparency of regulatory assessment processes and methodology to reduce non-compliance'.

While the regulator has conducted compliance activities since the child safe standards were introduced, these activities have not been informed by a documented compliance framework that explains how each activity relates to each other, and how they provide assurance of school compliance. This limits the transparency of the regulatory assessment process and methods, and misses an opportunity to improve compliance through clearly communicated expectations.

The regulator has not clearly specified its expectations for how independent, government and Catholic schools are assessed and how quality assurance is conducted. Because of this lack of clarity, CECV and the department have developed and documented their own compliance assessment models. The regulator has not sought to approve them to ensure they provide it with satisfaction of compliance. This is despite the regulator providing CECV with $137 600 in 2009 to develop its review body processes.

The regulator acknowledges the risks that this lack of documentation poses in the event of significant staff turnover.

During our audit, the regulator developed a draft school compliance framework. It outlines the regulator's policy to ensure that its regulatory decisions taken after school reviews are fair, consistent, proportionate and transparent. Its purpose is to guide the regulator in assessing and responding to the risks of schools refusing to accept non-compliances and/or urgency of action required. However, it does not explain the regulatory assessment process and assessment methods the regulator uses to satisfy the regulator of school compliance.

Variation in reliance on school attestations of compliance

Schools were required to comply with the seven child safe standards from 1 January 2016. In the letter accompanying the ministerial order, the Minister for Education requested the regulator to assist and support schools to achieve compliance with the 57 ministerial order requirements when they came into force on 1 August 2016.

The regulator required all schools to sign statutory declarations about their school's compliance during the 2016 calendar year. Neither the regulator nor its review bodies undertook assessments to confirm compliance with the ministerial order during 2016.

The regulator has not required a consistent cross-sector approach to self-assessments or attestations since 2017. Figure 3C shows that the extent to which attestations are required, the position accountable for making one, and how often they are to be made, varies by sector.

Figure 3C
Requirements for school compliance attestations by sector as at March 2019

 

Independent

Catholic

Government

Regulator's requirement for school attestations

* No requirement

Regulator does not require CECV to seek attestations from Catholic schools

Through its MOU, the regulator requires DET to require government schools to attest

Requirement communicated to schools

N/A

Correspondence provided to schools through CECV intranet

Department's guidelines on the Annual Report to School Community

Position accountable for attestation

N/A

Principal

Principal and school council president

Frequency

N/A

Annually

Annually

Note: * The regulator advises that the ETR Act does not provide it explicit powers to require independent schools to attest to their own compliance.
Source: VAGO.

The regulator advises that the ETR Act does not provide it explicit powers to require independent schools to attest to their own compliance. The regulator therefore has no requirement in place for independent schools. Both the department and CECV require their schools to attest to compliance. School compliance with the attestation is verified at the next school review that is conducted.

Since 2016, CECV has required its school principals to annually attest to compliance in their annual reports, despite no requirement to do so in its MOU with the regulator.

Through their MOU, the regulator requires the department to ensure government schools attest in their annual reports to their schools' compliance.

In 2017, the department required government school principals and school councils to attest that 'the school is compliant with the Child Safe Standards prescribed in Ministerial Order 870—Child Safe Standards, Managing Risk of Child Abuse in Schools' on the front cover of their annual report.

From 2018, the department changed this attestation requirement on the front cover of their annual report to:

  • require principals to attest that 'the school is compliant with the Child Safe Standards prescribed in Ministerial Order No. 870—Child Safe Standards, Managing Risk of Child Abuse in Schools'
  • require the school council to attest that 'to the extent that the school council is responsible, the school is compliant with the Child Safe Standards prescribed in Ministerial Order No. 870—Child Safe Standards, Managing Risk of Child Abuse in Schools.'

In our 2018 School Councils in Government Schools audit, we found that the department had not clearly explained to government school authorities—called school councils in government schools—their role, particularly in relation to school compliance with minimum standards. Although school councils are responsible for school compliance, they do not have the power to ensure their school complies with the ministerial order requirements when employing teachers, including principals, in the government teaching service. This is because the department employs these staff. A school council only has the power to ensure their school complies in relation to staff it employs on temporary contracts, such as education support staff and casual relief teachers.

The department is yet to update its guidance to school councils to explain their compliance responsibility and the meaning of such an attestation within the context of the school council's role.

Variation in school compliance monitoring approaches

As the regulator has not specified its expectations of review bodies' compliance monitoring approaches, there is variation in the way each school sector is assessed against the ministerial order requirements, which means compliance data is not comparable.

As shown in Figure 3D, these variations include the proportion of schools assessed each year, and the frequency and nature of the assessments.

Figure 3D
Variation in monitoring arrangements by school sector

 

Independent

Catholic

Government

Cyclical reviews

Frequency

Every 5 years

Every 4 years

Every 4 years

Nature of assessment

All requirements

All requirements

Part of the school improvement assessment process. Compliance only assessed against the nine high impact requirements identified by the regulator.

Out of cycle reviews

Frequency

Schools selected when they are classified as high risk—usually due to a complaint or media coverage.

No requirement

10 per cent of government schools randomly selected each year

Nature of assessment

All requirements

No requirement

All requirements

Source: VAGO.

Variation in quality assurance of assessments

Quality assurance involves planned and systematic activities to provide confidence that an assessment meets a predetermined quality requirement.

We found that while the regulator has a practice of checking its own staffs' compliance assessments at initial registration, it has not documented this practice.

In February 2018, the regulator documented its process for assuring ongoing assessments of independent schools through its School Review Quality Assurance Program. We found no evidence of how this has been put into practice.

Consistent with the Minister for Education's 2006 statement of expectations, the regulator has not sought to require its review bodies to demonstrate their quality assurance processes. It also does not quality assure their assessments itself.

Through its MOUs with CECV and the department, the regulator committed to 'negotiate an acceptable method, scope and timing through consultation with the review bodies where it seeks to validate the annual compliance report'. We found no evidence this has occurred.

Both the department and CECV confirm that they have no process to validate their assessor's compliance assessments.

3.5 The regulator's requirements on review body compliance assessments and reporting

Lack of clarity on the nature and availability of compliance data

During 2018, the regulator upgraded its systems to record compliance data for independent schools. This will enable it to improve its data analytics and reporting on school compliance in line with the ministerial order requirements.

The regulator receives summarised compliance statistics from its review bodies on a calendar year basis through their annual compliance reports. It has not defined the additional data it needs from its review bodies for government and Catholic schools to meet the ministerial expectation that it:

  • strengthens its evidence-based approach to regulation
  • collects relevant data to inform a risk-based approach to allocate resources and effort on activities where the risks are greatest
  • evaluates the outcomes of these approaches.

Without specifying its data needs, the regulator is also unable to satisfy itself of school compliance and conduct its own analytics of government and Catholic schools to identify compliance trends and issues.

Figure 3E details the school compliance data from the 2017 calendar year for government and Catholic schools, reported by the department and CECV to the regulator in their 2018 annual compliance reports.

Figure 3E
Reported school compliance during 2017 calendar year

 

Number of schools registered in 2017

Coverage of 57 ministerial order requirements

Number of schools assessed

Number of schools assessed as not-compliant at time of assessment

Number of schools compliant at time of assessment

Percentage assessed as compliant at time of assessment

Government schools

 

1 543

Assessed against nine high impact requirements

299

83

216

72%

Assessed against 48 requirements

68

18

50

74%

Catholic schools

 

492

Assessed against 92 tests

135

51

84*

62%*

Note: *We calculated these figures based on the compliance rate and number of schools assessed.
Source: CECV and the department's annual compliance reports.

The regulator also receives compliance data from its review bodies by financial year for its own annual report and for reporting to the commission.

As shown in Figure 3F, the regulator reports combined compliance statistics based on financial year. The data shows that approximately one third of Victorian schools were found to be non-compliant with the ministerial order requirements at the time that 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 all schools were found to be compliant following rectification.

The annual reports identify the compliance rates at the time of assessment. During their assessments, the regulator for independent schools and review bodies for government and Catholic schools work with these schools to address their non-compliance.

Figure 3F
Regulator's reported school compliance statistics by financial year

 

School review type

Number of schools assessed

Number of schools assessed as not-compliant against ministerial order at time of assessment

Percentage assessed as non-compliant at time of assessment

Percentage assessed as compliant at the time of assessment

Percentage assessed as non-compliant following rectification

2016–17*

 

General review

126

44

35%

65%

0%

 

Specific review

30

5

17%

83%

0%

2017–18

 

General review

634

214

34%

66%

0%

 

Specific review

50

14

28%

72%

0%

Note: * Data only covers the January to June period of 2017. It excludes independent schools for period of January to June 2017. The regulator advises that it did not complete reviews against the ministerial order requirements during this period.
Source: The regulator's annual report.

We found that collating or comparing summary school compliance statistics is of limited value because the data is not comparable. It is based on assessments that lack compliance criteria to guide the assessor's interpretations. The assessments are also based on different requirements and vary in the extent to which they consider all the requirements.

We also could not verify that the regulator's compliance figures accurately reflect school compliance for the reported period because the regulator does not have access to CECV's and the department's source data.

Because of this, the regulator is also not able to analyse the data to identify compliance trends and identify risks.

3.6 Reporting on potential breaches of the child safe standards requirements

Lack of clarity for review bodies, schools and system administrators on reporting of potential breaches of the child safe standards requirements

As review bodies, CECV and the department detect non-compliance when they conduct school assessments, and work with schools to address non-compliance.

While the regulator expects its review bodies to provide a collated report on school compliance annually as a result of these assessments, it has not clearly specified its needs relating to reports of potential breaches that they find throughout the year.

CECV and the department as system administrators, and individual schools, can also become aware of potential breaches through receiving complaints.

The regulator has its own complaints management process for all schools. CECV and the department have separate complaints management processes for Catholic and government schools respectively. CECV records complaints related to the minimum standards, but does not specifically identify the child safe standards. Neither CECV's nor the department's complaints processes are designed to enable the regulator to identify potential breaches relating to the child safe standards. They also do not specify when they would notify the regulator.

Unlike the legislative requirements for reporting to the commission on potential reportable conduct within three business days, there are no legal requirements to ensure schools or system administrators report to the regulator on potential breaches of the child safe standards requirements in a timely way.

This approach is consistent with the Minister for Education's 2006 statement of expectations for the regulator. At the time, the Minister for Education expected that the regulator would not act as a complaints body and that system administrators, such as the department, would manage complaints about schools.

However, the introduction of the child safe standards in 2015 brought with it a new expectation that the regulator would be responsible for responding to alleged breaches. The Minister for Education and the Minister for Training and Skills now expect the regulator to undertake the full range of functions and powers provided to it in the legislation. The regulator has powers to monitor and investigate potential breaches of the child safe standards requirements under the ETR Act and enforce school compliance.

Without clarity on the regulator's data needs relating to potential breaches that review bodies find and address throughout the year, the regulator is not able to communicate these to schools and system administrators. The regulator therefore misses a valuable source of information about potential breaches, limiting its ability to use its investigative and enforcement powers.

The regulator relies on referrals from other agencies, schools, and system administrators to advise it of potential breaches. It also relies on other sources, such as media reports or complaints made to it directly, as well as the limited data available to it through the annual collated reports provided by its review bodies.

We found that this approach does not reliably ensure that the regulator is kept informed, or able to analyse evidence to inform a risk-based approach to regulating schools.

How the regulator responds to alleged breaches

When assessing and investigating an alleged breach, the regulator tests the allegations against relevant minimum standards, conditions, guidelines or required behaviours. Where the regulator finds that a registered school does not comply with one or more of the minimum standards or has not complied with a condition of its registration, the regulator can conduct a review. The regulator then works collaboratively with schools to help them meet their obligations.

However, when this approach is unsuccessful, the regulator has powers to ensure that the school meets the minimum standards. The ETR Act provides that it may:

  • accept a written undertaking to comply from the proprietor or principal
  • impose conditions on the school's registration
  • prohibit the school from enrolling any new students
  • require the school to report its non-compliance to parents
  • suspend or cancel the school's registration
  • apply for a Court Order if the undertaking is breached.

While the regulator advises that it takes into account the following factors to make a decision, it is yet to document:

  • whether there is any risk to the safety of children at the school
  • whether there is any risk to the children's education or learning outcomes
  • the financial viability of the school
  • the nature and extent of the non-compliances
  • the school's history of compliance
  • the school's response to the non-compliances and whether it is willing to work with the regulator to address any non-compliances
  • the outcomes the regulator is trying to achieve.

The lack of clearly documented criteria limits the transparency of the regulator's decision-making process.

During our audit, the regulator developed a draft document that outlines the regulator's policy to ensure that its regulatory decision taken after school reviews are fair, consistent, proportionate and transparent. Its purpose is to guide the regulator in assessing and responding to the risks of school's refusing to accept non-compliances and/or the urgency of action required. While this document explains the process for making a decision, including who is responsible, the document does not identify the criteria that decision-makers will use.

3.7 Supporting the commission on the child safe standards

Supporting the commission to report publicly on compliance

The regulator supports the commission to report publicly on compliance with the child safe standards requirements. The commission must give a report of the details of compliance with the standards to the Minister for Child Protection and the DHHS Secretary any time they require it to do so. The commission may request that the regulator provide it with information on school compliance with the standards for schools.

The regulator has committed to provide compliance information on schools through its annual report.

As we have found the compliance data that the regulator collates is not comparable, the commission's reports to the Minister for Child Protection and the DHHS Secretary relating to schools are equally affected.

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