Under the Victorian Government's current statement of expectations framework for regulators, departments must evaluate the statement of expectations for regulators within their portfolios.
The evaluation requirements are intended to ensure an objective review of the framework's success in improving regulator performance and outcomes and reducing costs for regulated parties.
This Part focuses on the department's evaluation of the regulator's performance against the ministerial expectations of it. These include the expectations relating to the child safe standards requirements. We have also considered how the department identifies opportunities for continuous improvement for the regulator and for development of the next statement.
The department's first evaluation of the regulator's performance was based on public information and advice from the regulator's staff and its board. It focused on the regulator's performance against one of the ministers' expectations—that the regulator would continue to undertake its core responsibility to provide clear guidance and support for educational organisations to successfully implement the child safe standards. The department did not evaluate the regulator's performance against ministerial expectations relating to its regulatory approach.
As a result, the department did not evaluate the regulator's performance against the ministers' full set of expectations.
In this audit, we identified numerous performance issues relating to the regulator's guidance and its regulatory approach that were not within the scope of the statement of expectations evaluation, and also found areas where the regulator needs to improve guidance and support to schools. These issues and other relevant findings from this audit should be considered in establishing future statements of expectations and related targets, and the scope of future evaluations.
4.2 The department's evaluation
Victorian Government requirement to evaluate the regulator's performance
All regulators in Victoria are issued a ministerial statement of expectations—a strategic direction that outlines the Victorian Government's expectations about regulatory governance and performance.
In 2017, the Victorian Government introduced a new Statement of Expectations Framework for Regulators. It aims to promote greater efficiency and effectiveness of regulators.
The Department of Treasury and Finance's Guidelines for Evaluation of Statements of Expectations for Regulators outlines that the evaluation process should be completed six months prior to the end of the statement, so learnings from the evaluation can feed into the development of subsequent statements.
The purpose of the evaluation of regulator outcomes is to assist regulators to identify opportunities and develop plans to:
- improve performance and outcomes
- reduce costs on regulated parties.
At a minimum, the evaluation should include:
- an assessment of how well the regulator performed against its intended outcomes
- identification of any key risks or barriers affecting its performance
- an outline of applicable lessons going forward.
The guidelines explain that the complexity and depth of analysis contained in the evaluation should be reasonable (evidence-informed and defensible) and proportionate to both the size of the regulator and the scale of regulatory activity. Evaluations should be as comprehensive as possible without imposing significant additional and potentially costly extra work.
The evaluations must also be undertaken in collaboration with the regulator and rely on established processes where appropriate.
The regulator's statement of expectations
The Minister of Education and the Minister for Training and Skills jointly issued the regulator's current statement for 2018–19 on 8 January 2018. It expires on 30 June 2019, making it an 18-month cycle. Future statement cycles will cover a two-year period, in accordance with the requirements in the statement of expectations framework.
The regulator's current statement of expectations expresses the ministers' expectation that it will undertake the full range of functions and powers provided to it in the legislation. It explains that the regulator should continue to improve the efficiency and effectiveness of its regulatory activities by considering ways to improve regulatory practice. This includes reducing 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.
The statement does not include specific performance improvement targets. The expectations are instead framed in terms of the regulator's processes.
The ministers' expectations focus on the following areas of regulatory activity:
- home schooling
- expulsions reform
- child safe standards in schools
- apprenticeships and traineeships.
The statement also explains that the regulator should continue to:
- strengthen its evidence-based approach to regulation and collect relevant data to inform a risk-based approach to allocate resources and effort on 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. This will support providers and clients to understand and comply with their legal and regulatory obligations.
Expectations specific to the child safe standards
The expectations that apply to the regulator's activities to assure compliance with the minimum standards for school registration apply equally to the ministerial order requirements.
The ministers in particular expected that the regulator would continue to undertake its core responsibilities, including providing clear guidance and support for educational organisations to:
- successfully implement the child safe standards
- meet the required minimum standards for registration.
The ministers expected the regulator to undertake its core responsibilities while working in partnership with all sectors to embed the minimum standards as a core part of school improvement and effective governance.
The department's evaluation
Focus and scope
The department conducted its first evaluation of the regulator's performance against its ministerial statement of expectations during our audit. It focused on the four functional areas from the 2018–19 statement of expectations with specific improvements and targets, including the child safe standards. As the evaluation should be undertaken at least six months before it expires, to inform the next iteration of the statement, the effective period for the department's evaluation was between January and December 2018.
The department's evaluation intended to report on what activities the regulator has been able to achieve in the time available, and to highlight any issues and challenges. The evaluation report aims to establish baseline measures for the development of future statement of expectation targets. It was not intended to make causal attributions between the regulator's activities and outcomes.
Consistent with the guidance, the department's evaluation was limited to publicly available information and advice from the regulator. The department advises that it has no powers to compel the regulator to provide information. The department therefore considered information in the regulator's annual reports, client and stakeholder research and other information provided by the board. The department also consulted the regulator's staff and board members and considered the regulator's own assessment of its performance against the statement of expectations.
The department's statement of expectations evaluation plan noted our audit was being undertaken, but that it could not be incorporated into the evaluation due to the timing of both the evaluation and our audit. It notes that our audit was likely to be comprehensive and provide more significant insight into the regulator's performance in relation to the child safe standards. In comparison to our audit, the department's evaluation of the child safe standards had a very specific focus and was limited by the factors outlined above.
Department's evaluation of the regulator's performance relating to the child safe standards
The department's evaluation included a 'process evaluation', which found that general aspirations expressed in the statement were not conducive for evaluation, and that future statements should frame expectations as measurable performance objectives. The department concluded that the child safe standards should remain a focus of future statements.
Guidance and support
The department found that the regulator provided guidance and promoted the child safe standards. The department recognised that schools need further guidance from the regulator.
As discussed in Part 2, we found that while the regulator provides guidance and support for educational organisations, its guidance does not specify the criteria it uses to determine compliance. Without this information, the regulator's ability to meet the ministerial expectation that it will support schools to understand and comply with their legal and regulatory obligations is limited.
To avoid ongoing uncertainty about the regulator's responsibilities, future statements of expectations for the regulator should provide clarity on the ministerial expectation of the regulator's role and responsibility, including for:
- providing clear guidance to schools on the criteria it uses to determine compliance with the minimum standards relating to child safety
- providing guidance on how schools can embed child safe cultures
- coordinating its guidance with the department and the commission.
The regulator's assurance of school compliance
In relation to the child safe standards, the department's evaluation did not focus on the regulator's activities to assure compliance with the ministerial order requirements as a minimum standard requirement for school registration.
Within the limited scope of the evaluation, the department concluded that because the regulator's monitoring and enforcement activities identified incidences of non-compliance with the child safe standards in all sectors, that the review process is effective.
The department recognises that more needs to be done to ensure greater compliance.
As discussed in Part 3, we found that the regulator's current approach to regulating school registration largely reflects the ministerial expectation of it in 2006. Its approach has not changed to reflect the introduction of the child safe standards in 2015 or to respond to the 2018 ministerial expectation for it to monitor and enforce compliance with the minimum standards. We also found that it lacks appropriate accountability arrangements for its review bodies.
To avoid ongoing uncertainty about the regulator's responsibilities, future statements of expectations for the regulator should provide clarity on the ministerial expectation of the regulator, including with respect to:
- its regulation approach for the minimum standards—including the standard for child safety and how it assures school compliance while also reducing schools' regulatory burden
- its authority over its appointed review bodies and its ability to specify its requirements of their compliance assessments to satisfy itself of school compliance, and ensure schools are assessed consistently
- its need to document its processes
- minimum expectations for data quality and evidence-based decision-making.