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Education and Training Reform
Amendment (Child Safe Schools) Bill
2015
Introduction Print
EXPLANATORY MEMORANDUM
General
Overview
The Education and Training Reform Amendment (Child Safe Schools)
Bill 2015 amends the Education and Training Reform Act 2006
(the Principal Act) to establish a regulatory framework for schools to
implement in future the Victorian Government's responses to
Recommendations 12.1 and 16.1 of the report of the Family and Community
Development Committee of the Parliament (FCD Committee), Betrayal of
Trust: Inquiry into the Handling of Child Abuse by Religious and other
Non-Government Organisations (Betrayal of Trust Report).
The Bill will also enhance the Victorian Registration and Qualifications
Authority's (VRQA) regulatory powers with respect to schools.
Lastly, the Bill makes a number of technical statute law revision amendments
to rectify incorrect references to provisions and other errors.
Background
Government's Response to the Betrayal of Trust Report
The FCD Committee's Betrayal of Trust Report put forward a number of
recommendations that the Government has committed to implement.
Recommendation 16.1 of the Betrayal of Trust Report advised the
Government to review procedures for responding to allegations of criminal
child abuse within Victorian schools and identify a benchmark to apply to
non-Government schools. Recommendation 12.1 of the Report proposed that
Government implement minimum standards for maintaining "child-safe
581007 1 BILL LA INTRODUCTION 10/2/2015
environments" for all organisations with direct and regular contact with
children, including schools.
The Bill will take the first step towards implementing the Government's
response to these recommendations in the schools environment by imposing
on all schools a new prescribed minimum standard for registration.
The new standard will require schools to develop, in accordance with a
Ministerial Order, policies, procedures, measures, and practices for managing
risks associated with child abuse. The requirements may include
implementing minimum standards for child safe environments in schools, and
developing policies and procedures for responding to allegations of child
abuse that arise in a schools context.
VRQA powers
The VRQA is the statutory body responsible for the registration of schools.
The Principal Act provides that the VRQA must not register a school unless
the school complies with the prescribed minimum standards for registration.
Further, the Principal Act requires the VRQA to ensure that registered
schools maintain and meet those minimum standards, and that the standards
are regularly reviewed.
The Bill will strengthen school regulation by enhancing the VRQA's powers
to undertake efficient reviews and evaluation of schools to ensure they
continue to comply with the prescribed minimum standards for registration,
and to take effective action directed towards rectifying non-compliance.
Minor amendments
A number of statute law revision amendments will be made by the Bill
(for example to rectify typographical errors).
Summary of the main amendments and their effect
First, the Bill will authorise the Minister to make a Ministerial Order that
determines the kinds of policies, procedures, practices and other measures
that a school must have to ensure they manage the risk of child abuse.
The requirements to manage the risk of child abuse may include minimum
standards for child safe environments (determined by the Minister), and
procedures schools must follow when responding to allegations of child
abuse. Schools must comply with the requirements of the Ministerial Order
as a prescribed minimum standard for school registration.
The Bill will also enhance the VRQA's powers to--
· undertake targeted reviews where concerns arise about a school's
compliance with one or more specific prescribed minimum standards
for registration and take rapid action to respond to breaches;
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· seek enforceable undertakings from poorly performing schools and
impose conditions on their registration;
· share information with other Victorian, interstate and Commonwealth
government agencies or regulatory and law enforcement bodies.
Lastly, the Bill will make several statute law revision amendments to rectify
typographical and other errors and clarify provisions in the Principal Act.
More detail on these amendments is provided in the clause notes.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, namely to amend the
Education and Training Reform Act 2006 (the Principal Act)
to establish a framework to require registered schools to take
appropriate actions to manage the risk of child abuse, and
strengthen the regulation of schools by enhancing the functions
and powers of the Victorian Registration and Qualifications
Authority. The Bill also makes a number of minor amendments
to the Principal Act and other Acts.
Clause 2 provides for the commencement of the Act.
The following provisions of the Bill will commence on the day
after the day on which the Bill receives the Royal Assent--
· Part 1, which deals with preliminary matters;
· Part 3, which makes statute law revision amendments to
the Working with Children Act 2005 and the
Workplace Injury Rehabilitation and Compensation
Act 2013; and
· Clause 13, which makes statute law revision
amendments to the Principal Act.
The remainder of the Bill will come into operation on a day or
days to be proclaimed, with a forced commencement date of
21 December 2015.
Clause 3 provides that the Education and Training Reform Act 2006
will be referred to as the Principal Act in Part 2 of the Bill.
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Part 2--Amendments to the Education and
Training Reform Act 2006
Clause 4 amends section 1.1.3(1) of the Principal Act, which sets out
defined terms that are used in that Act. This clause introduces
three new definitions.
Firstly, municipal council is defined to have the same meaning
as "Council" in section 3(1) of the Local Government Act 1989.
Municipal council appears in the Principal Act multiple times but
has so far been undefined.
Secondly, public sector body is defined to have the same
meaning as it has in section 4(1) of the Public Administration
Act 2004.
The Bill will enable the VRQA to disclose information to a
prescribed person or body which includes a public sector body.
Public sector body has not previously been defined in the
Principal Act.
Lastly, child abuse is defined. The definition is used in the
context of the new prescribed minimum standard for school
registration. As defined, child abuse includes any act committed
against a child involving a sexual offence, or the grooming
offence in section 49B(2) of the Crimes Act 1958. In addition,
child abuse is defined to include physical violence, serious
emotional or psychological harm or exploitation and serious
neglect of a child. The proposed definition is inclusive, and is
not intended to be exhaustive.
Child abuse to date has not been defined comprehensively in
Victorian law and the term has escaped precise definition in other
places. The Betrayal of Trust Report adopted the term
"criminal child abuse" which referred to offences such as sexual
abuse, indecent assault, or other indecent acts under the Crimes
Act 1958.
However, it would be undesirable to limit child abuse to only
criminal sexual offences against a child because this would not
cover other conduct which involves the abuse of a child and is
unacceptable. Therefore, the definition of child abuse used in
the Bill covers a broader range of conduct and behaviours
which the community would consider child abuse, and which
reflects the multi-dimensional characteristics of child abuse.
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This includes serious psychological and emotional abuse, which
would cover conduct such as serious bullying, stalking,
harassment, or intimidation, or excessive and unreasonable
punishment or confinement. The concept of exploitation is
intended to include conduct that may infringe a federal child
sex exploitation law, as well as conduct that exploits a child
without necessarily being criminal--such as voyeurism
(regular observation of a child) or encouraging a child to engage
in inappropriate or risky behaviours. The concept of serious
neglect is well-understood in Victoria's child protection
framework, where it is a criminal offence for a parent or carer to
fail to protect a child from harm. Serious neglect includes
situations where a parent or carer fails to meet the child's basic
needs for food, shelter, hygiene, medical care, or adequate
supervision to the extent that the child's health and physical
safety is at risk.
The broad range of conduct that comprises child abuse for the
purposes of this Bill is informed by the Betrayal of Trust report
which made findings that children subjected to criminal sexual
abuse were often also subjected to physical and/or emotional
abuse, or neglect.
At the same time, the scope of the definition of child abuse is not
intended to be so wide as to be administratively unworkable or
inadvertently capture conduct that is not reasonably considered to
be "child abuse"--for example, the definition is clear about
excluding reasonable discipline, management or care of a child in
the context of the school classroom, or the family and wider
community.
Clause 5 inserts new section 4.3.1(6)(d) and (6A) into the Principal Act to
add two new requirements for school registration.
Subclause (1) makes a consequential amendment to
section 4.3.1(6)(c) of the Principal Act to revise punctuation to
reflect the insertion of new section 4.3.1(6)(d) by subclause (2).
Subclause (2) inserts a new section 4.3.1(6)(d) into the Principal
Act. It imposes a requirement for a school to develop policies,
procedures, measures, and practices in accordance with a
Ministerial Order for managing risks associated with child abuse.
The requirements for managing risks associated with child abuse
may include minimum standards for ensuring schools are child
safe environments, and ways to respond to allegations of child
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abuse that are connected with the school. A child abuse
allegation is connected with the school if the child concerned is
enrolled at the school, or the alleged perpetrator is an employee,
contractor or volunteer of the school, another student at the
school, or some other person who is connected with the school.
However, the alleged abuse may occur outside the school
environment, such as at home or elsewhere in the community.
This promotes the implementation of the Government's response
to Recommendations 12.1 and 16.1 of the Betrayal of Trust
Report.
It is anticipated that the requisite school policies and procedures
would (among other things) address--
· incidents that occur or are disclosed in the school
context;
· investigation of allegations against school employees
that involve or give rise to the risk of child abuse,
including allegations of conduct occurring outside the
school context. Such allegation might involve children
other than students of the school;
· abuse of a child by someone associated with the school,
such as another student or an employee, contractor or
volunteer whether or not the abuse occurs at school or
elsewhere.
It is intended that the requirement to manage risks associated
with child abuse will promote the adoption by schools of better
preventive measures to minimise the risk of child abuse in the
school context, and the broader community. However, the
additional actions are not intended to alter existing duties or
obligations to report allegations of abuse to Victoria Police or the
Department of Health and Human Services.
The amendment provides that the VRQA must be satisfied that
schools have developed the required policies, procedures, etc in
accordance with a Ministerial Order. This will ensure that
policies are consistent and comply with benchmark standards.
Subclause (3) inserts new section 4.3.1(6A) in the Principal Act
which empowers the VRQA to impose reasonable conditions on
a school's registration to take effect for the whole or any part of
the period of registration.
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Subclause (4) amends section 4.3.1(8) of the Principal Act to
declare new section 4.3.1(6)(d) to be a prescribed minimum
standard for registration of schools. As a consequence of being
prescribed, the new minimum standard is subject to the VRQA's
compliance monitoring functions and powers, and the VRQA
may also issue binding guidelines to schools in respect of it
(see Clause 11 below).
Clause 6 amends section 4.3.2 of the Principal Act to enable the VRQA to
satisfy itself about a school's compliance with one or more or all
of the prescribed minimum standards for registration on the basis
of--
· a review and evaluation conducted by the VRQA; or
· a report from a person or body approved by the VRQA
to conduct a review and evaluation; or
· a report from a non-Government school or, in the case
of a Government school, the Secretary of the
Department.
At present, section 4.3.2 provides that the VRQA may satisfy
itself if a school complies with the prescribed minimum standards
for registration, which undesirably is interpreted to mean all of
the standards.
Clause 7 amends section 4.3.3 of the Principal Act to enable the VRQA to
conduct a specific review and evaluation of a school's operations.
Subclause (1) substitutes the current section 4.3.3(1) to clarify
that any review and evaluation of a registered school must be
conducted in accordance with this section.
Subclause (2) amends the current section 4.3.3(2) to distinguish a
general review from a specific review.
The purpose of this amendment is to provide a distinction
between a general review which checks a school's compliance
against all of the prescribed minimum standards and a specific
review which is provided for in new section 4.3.3(2A).
Subclause (3) inserts a new section 4.3.3(2A) in the Principal Act
which enables the VRQA to undertake a specific review and
evaluation with respect to one or more prescribed minimum
standards if the VRQA on reasonable grounds believes that--
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· there are safety concerns which require urgent action by
the school; or
· exceptional circumstances justify a specific review and
evaluation.
Subclause (3) also inserts new section 4.3.3(2B) into the
Principal Act to clarify that exceptional circumstances include
but are not limited to a serious non-compliance or repeated
non-compliance with a prescribed minimum standard for
registration.
At present, section 4.3.3 allows the VRQA to review a school's
compliance with all of the prescribed minimum standards of
registration, which can be time-consuming and unnecessary if a
particular non-compliance must be rectified immediately
(for example, if a health or safety issue has been identified).
This amendment will enable the VRQA to more efficiently
conduct a targeted review and evaluation of a school and take
action more quickly if necessary.
The amendment does not prevent the VRQA from conducting a
review and evaluation with respect to multiple or all of the
prescribed minimum standards for registration.
Subsection (4) amends section 4.3.3(3) of the Principal Act to
clarify that the VRQA may by notice in writing require a school
that is subject to a review and evaluation to provide information
and records about the management and operation of that school.
There is also a consequential amendment to clarify that the
information required by the VRQA notice be relevant to one or
more of the prescribed minimum standards for registration.
Clause 8 repeals section 4.3.3(4) to (7) of the Principal Act, which sets out
the procedure the VRQA must follow after the end of a review of
school operations if the VRQA is satisfied that further action
needs to be taken. The repeal is consequential to amendments
made by Clauses 7 and 9 that provide for the conduct of a general
or specific review and evaluation of the operation of a school.
Clause 9 substitutes new sections 4.3.3A to 4.3.3G for current
sections 4.3.3(4) to (7) of the Principal Act. The new sections
provide for enforceable undertakings and interim conditions on
registration in the context of a review and evaluation of a school's
operations.
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New sections 4.3.3A to 4.3.3D deal with enforceable
undertakings. Section 4.3.3A(1) will enable the VRQA to accept
a written undertaking that is made voluntarily by the proprietor or
principal of a registered school that is the subject of a general or
specific review and evaluation.
The undertaking may be made in connection with any matter
related to a power or function of the VRQA under the Principal
Act, or in relation to non-compliance with a prescribed minimum
standard for registration. An undertaking that is accepted by the
VRQA is legally enforceable by the Magistrates' Court if the
school proprietor or principal do not comply with its terms.
Subsection (2) further provides that neither an undertaking nor a
Court order made (under new section 4.3.3D) to enforce an
undertaking can be inconsistent with the Principal Act, the
regulations or a prescribed minimum standard for registration.
This ensures that an undertaking is directed towards achieving
compliance with the legislated requirements, and does not modify
what is required.
Subsection (3) provides that a school proprietor or principal may
withdraw or vary an undertaking with the consent of the VRQA.
The VRQA already has the ability to accept and enforce
undertakings from registered training organisations under
Division 3 of Part 5.8 of the Principal Act. The amendment
would enable the VRQA to use a similar tool to enhance
compliance and enforcement in the school sector.
A new section 4.3.3B provides that, upon acceptance, the VRQA
must give a copy of the undertaking to the person who gave it.
A new section 4.3.3C requires the VRQA to maintain an up to
date register of undertakings.
Both sections 4.3.3B and 4.3.3C will ensure clear and consistent
record-keeping of undertakings made from time to time.
A new section 4.3.3D will enable the VRQA to apply to the
Magistrates' Court for an order if an undertaking has been
breached. The Magistrates' Court will then be authorised to
make an order if it is satisfied that there has been a breach of a
term of the undertaking.
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The Court order may direct a person to comply with the term of
the undertaking, and make any other order the Court thinks
appropriate.
Furthermore, the section provides that if the Magistrates' Court
finds that a body corporate has breached an undertaking, each
officer is considered to have so breached the undertaking if the
officer knowingly authorised or permitted the breach.
Consequently, the Magistrates' Court could make an order
directing the officer to comply with the undertaking.
Being able to apply to the Magistrates' Court to enforce an
undertaking is also an important tool for the VRQA to have in
order to ensure a school's compliance with its obligations under
the Principal Act.
Clause 9 further inserts new sections 4.3.3E and 4.3.3F in the
Principal Act. These sections provide for interim conditions to
be imposed on a school's registration during the conduct of a
review and evaluation of the school's operation.
Clause 9 further inserts a new section 4.3.3G in the Principal Act.
This section sets out the procedure the VRQA must follow after it
decides to take action after the end of a review and evaluation of
the operation of a school.
Subsection (1) enables the VRQA, where it is in the best interest
of the school's students or in the public interest, to take any
action prescribed in section 4.3.4 of the Principal Act.
The VRQA may only take these actions after the conduct of a
review and evaluation. The actions include suspension or
cancellation of registration, prohibition against enrolment of new
students, the requirement that the school must report to parents of
the students of the non-compliance, or the imposition of
conditions on registration.
At present, section 4.3.3(4) provides the VRQA with the same
power. Accordingly it is intended that this section is replaced by
the new section 4.3.3G(1).
Subsection (2) provides the VRQA must give the affected school
written notice before a determination is made to take an action.
The notice must include the proposed action and reasons for
taking that action, as well as the time period in which the school
can make show-cause submissions to the VRQA and the
Minister.
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Section 4.3.3(5) currently provides that the VRQA must give
notice of the proposed action and reasons to the affected school.
Similarly, it is intended that this section is replaced by the new
section 4.3.3G(2).
Subsection (3) requires that an affected school must be given
28 business days in the case of general review and evaluation,
and 10 business days in the case of a specific review and
evaluation after the receipt of the written notice to make show-
cause submissions to the VRQA and the Minister about why the
proposed action should not be taken.
Currently, section 4.3.3(6) requires that the school must be given
28 days to make submissions to the VRQA and the Minister to
show cause as to why the proposed action should not be taken.
This section is replaced by the new section 4.3.3G(3). A shorter
period is provided to make submissions in the case of a specific
review because that kind of review occurs in exceptional or
urgent circumstances (see section 4.3.3(2A) inserted by clause 7
of the Bill).
Subsection (4) provides that the VRQA must consider the
school's submissions and comply with any direction of the
Minister.
New subsection 4.3.3E(4) will replace section 4.3.3(7) which
currently contains the same requirement.
Subsection (5) allows the VRQA to extend the time period for a
school to make submissions where the school applies for such
time extension.
There is no equivalent provision currently in the Principal Act
and this is designed to give the VRQA discretion to extend the
affected school's time to make a submission.
Clause 10 amends section 4.3.4 of the Principal Act to reflect amendments
introduced by earlier clauses in the Bill.
Subclause (1) amends section 4.3.4(1) to make a minor
amendment to refer to the "conduct" of a review and evaluation
of the operation of a school.
Subclause (2) amends section 4.3.4(2) to reflect the amendment
in clause 6 to clarify that non-compliance with prescribed
minimum standards for registration may relate to one or more of
the standards.
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Subclause (2) also makes clear that the VRQA could take one or
more of the prescribed actions. At present, each of the actions
listed in section 4.3.4(2) is followed by the word "or". This could
be undesirably interpreted as limiting the VRQA to only take any
one action at any given time. The amendment will expressly
enable the VRQA to take one or more actions with respect to
non-compliance with one or more of the prescribed minimum
standards for registration.
Subclause (3) makes consequential amendments to
section 4.3.4(2) because of the amendment made by
subclause (2)(b).
Clause 11 inserts new section 4.3.8A into the Principal Act.
The new section 4.3.8A empowers the VRQA to issue guidelines
to registered schools about the matters in section 4.3.1(6) of the
Principal Act.
This amendment reinstates the VRQA's guideline-making power
with respect to registered schools which was removed by a
previous amending Act.
At present, section 4.3.11(3) enables the VRQA to make
guidelines for schools. However, this section falls under
Division 3 of the Principal Act and section 4.3.9A explicitly
states that Division 3 applies to schools only in respect of
accredited senior secondary courses and registered senior
secondary qualifications.
Subsection (1) provides that the VRQA may make guidelines
about matters currently listed under section 4.3.1(6) of the
Principal Act, namely any of the prescribed minimum standards
for registration for a school and the school's policies for student
discipline, anaphylaxis management (if applicable), and the new
child safety standard.
Subsections (2) to (4) require the VRQA to provide that any
guidelines issued--
· must not be inconsistent with the Principal Act, any
statutory rules or Ministerial Orders made under the
Principal Act;
· may apply, adopt or incorporate any matter contained in
a document published by another person or body;
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· must be published in the Government Gazette.
These subsections are intended to ensure that any guidelines
issued by the VRQA are consistent with the rest of the Principal
Act and are publicly available.
Subsection (5) also enables regulations to be made to require a
registered school to comply with any of the guidelines pertaining
to the prescribed minimum standards for registration.
Clause 12 substitutes section 4.9.4(1) of the Principal Act to provide the
VRQA with expanded authorisation to disclose information to
certain prescribed persons or bodies.
At present, section 4.9.4(1) authorises the VRQA to disclose to
the Secretary of the Department, a Commonwealth Government
Department or another registering body information arising from
a prescribed list of circumstances.
However, this section unduly limits the VRQA's information
sharing powers. For instance, the VRQA could not disclose
information to another Victorian Government Department such
as the Department of Health and Human Services where the
VRQA has obtained information that there are health or safety
concerns at a school. Similarly, current section 4.9.4(1) does not
authorise the VRQA to disclose a school's registration
information to the registering body of another State or Territory
when a school has a campus or operations located there.
These limitations prevent the VRQA from sharing important and
relevant information with other regulatory and law enforcement
bodies which are then burdened with the need to collect the same
information independently.
The amendment is intended to broaden the nature of information
that, and the persons or bodies to which, the VRQA may
disclose. This enables information already collected by
Government to be used again for more efficient regulation.
Namely, the VRQA is empowered to disclose any information it
has acquired in the course of performing its functions or
exercising its powers to any of the following persons or bodies,
so long as the information relates to the function of that person or
body--
· the Secretary to the Department responsible for the
administration of education and training in Victoria;
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· the Secretary to another Department of the Victorian
Government;
· a public sector body;
· a municipal council;
· a school registering body equivalent to the VRQA in
another jurisdiction;
· a government department of the Commonwealth,
another State, or a Territory; and
· a Commonwealth agency.
Clause 12 further inserts new section 4.9.4(1AAA) into the
Principal Act to enable the VRQA to ask a prescribed person or
body to provide information if that information could help the
VRQA determine whether or not a registered school is complying
with a prescribed minimum standard for registration.
This new subsection simply empowers the VRQA to request
relevant information from prescribed persons or bodies but does
not compel the information to be provided to the VRQA.
Subclause (2) amends section 4.9.4(2) of the Principal Act to
adjust the wording for consistency with other Acts.
Subclause (3) substitutes the definition provision in section
4.9.4(3) and inserts new definitions for prescribed body or
person and school registering body. The defined terms are used
in new section 4.9.4(1), (1AAA), and (3).
Clause 13 makes statute law revision amendments to sections 3.3.10(1)(b),
3.3.29C(2)(a) and 3.3.30(1)(b)(ii) of the Principal Act to correct
errors being a duplicated word, punctuation error and a spelling
error.
These amendments do not alter the current law.
Part 3--Amendment of other Acts
Clause 14 makes a statute law revision amendment to the note at the foot of
section 30(1) of the Working with Children Act 2005 to correct
an incorrect reference to a section of the Principal Act.
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Clause 15 makes a statute law revision amendment to clause 1(1)(b)(i) of
Schedule 1 to the Workplace Injury Rehabilitation and
Compensation Act 2013 to replace the reference to "a university
with a TAFE division" with a reference to "a dual sector
university".
As a result of the Education and Training Reform
Amendment (Dual Sector Universities) Act 2013, all
references to "universities with a TAFE division" in Victorian
Acts were intended to be replaced by a "dual sector university".
The reference in Schedule 1 to the Workplace Injury
Rehabilitation and Compensation Act 2013 was overlooked at
the time. This amendment rectifies the oversight.
Part 4--Repeal of amending Act
Clause 16 provides that this Act is repealed on 21 December 2016.
The repeal of the Act does not affect in any way the
continuing operation of the amendments made by the Act.
(See section 15(1) of the Interpretation of Legislation Act
1984.)
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