New Guidelines to Minimum Standards from 2021: Mandatory changes to child safety, ELCs, governance & enrolment

The VRQA released the new Guidelines to the Minimum Standards on 17 June 2020.

These will take effect from 1 January 2021 (new schools) or 1 July 2021 (existing schools).

The updated guidelines include changes which further confirm the focus of the VRQA on tightening school governance and operations in key areas, with continued emphasis on child safety and the not for profit regulations.

Some key amendments are set out here.

Child Safety

Currently, schools must provide evidence of the school’s policies and procedures for ensuring all staff understand mandatory reporting, the failure to disclose offence and the failure to protect offence.

From 2021, a further will be required: The grooming offence under the Crimes Act 1958 which is included in the definition of child abuse in Ministerial Order No. 870.

Constitution and Governance

Every school intending to operate an ELC must from 2021 have a provision in the school constitution relating to the delivery of ELC services.

Continuing on tightening school governance, new requirements will also be in place including in relation to:

  • audited independently verified business plans;
  • conflicts of interests (plus “duties”) now need to have a “detailed plan” as to how they will be managed (rather than an “explanation”);
  • firmer requirements for school contracting – confirming that both of the not for profit regulations (reg 5 and 7) cannot be breached by a school contract.

ELCs

On the topic of ELCs, further requirements now apply, in addition to the new constitutional requirement.

The “carve-out” announced early this year will continue, which provides that a school will not be considered to be operating for “gain” only because it operates a not for profit ELC using non-government funds which is a “feeder”, however it must from 2021 also have evidence of:

  • a published statement to the effect that a proportion of funds raised or fees collected by the school may be used to support the operation of the ELC. The statement must be published in general policies, such as the enrolment policy, enrolment agreement, fee schedule or policy, and promotional materials;
  • separate financial records for the school and ELC, with cross-subsidisation clearly identifiable (separate bank account not required); and
  • copies of any loan or security arrangements entered into by the school for the purpose of constructing or maintaining ELC infrastructure or funding the ELC.

Clarifying statements also note:

  • Playgroups are NOT ELCs – ie they will not be able to rely on the carve-out (ELCs are more broadly defined now, thankfully, following their narrow definition in the carve-out regs, which appeared to exclude younger students not in the “kinder” years);
  • ELCs must include a 3 or 4 year old kindergarten program;
  • ELCs which are co-ed will be considered a feeder for a single sex school provided some students do in fact go onto the school;
  • The ELC must be an approved education and care service.

Enrolment and Students

Enrolment policies will have to have from 2021 “For a non-government school operating or intending to operate an ELC, the policy must state that a proportion of funds raised or fees collected may be applied to the conduct of the school’s ELC.”

Implications

There will be more work to do on ELCs, not only in the constitution and enrolment documents and evidence, but in structuring. This will continue to be challenging for those who may not be able to show evidence of being a true feeder, for those which are running “loss leaders” or for those who offer a mixed service of both long day care and “kinder” years within one entity or set of accounts. We can assist if your school is in this category.

You will also need to ensure that your child safety and staff policies, training and documentation (e.g, staff contracts) cover the offence of “grooming”. The new Guidelines make it absolutely clear that the board and principal are responsible for complying with Ministerial Order 870. Again, we can assist.

You will need to check your procurement policy and practices with the even tighter controls on contracts not being permitted to breach the “not for profit” regulations. Let us know if you would like more information on this.

Similarly, please check your constitution not only for the ELC provision but more broadly against the not-for-profit and governance standards. Many older constitutions do not pass muster.

How we can help

If you have any queries about any of these matters, our education team can assist and has deep expertise and experience in education, and including child safety, regulation, not for profit compliance, governance, enrolments and constitutions.

For further guidance, please do not hesitate to contact us.

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