Wednesday, 4 March 2020

Bills

Education and Training Reform Amendment (Regulation of Student Accommodation) Bill 2020

Statement of compatibility

Mr MERLINO (Monbulk—Minister for Education) (10:39): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Education and Training Reform Amendment (Regulation of Student Accommodation) Bill 2020.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Education and Training Reform Amendment (Regulation of Student Accommodation) Bill 2020 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Education and Training Reform Act 2006 (ETR Act) to provide for the registration of premises at which accommodation services are provided to students enrolled at or attending registered schools, to make minor amendments to the ETR Act, and to make related consequential amendments to the Child Wellbeing and Safety Act 2005.

The Bill:

• expands the powers of the Victorian Registration and Qualifications Authority (Authority) to regulate school boarding premises;

• requires registration of school boarding premises with the Authority;

• enables regulations to prescribe minimum standards for registration of school boarding premises; and

• provides a framework for review, compliance and enforcement to ensure the prescribed minimum standards are satisfied.

Where appropriate and practicable, the provisions in the Bill for registration of school boarding premises align with the existing provisions in the ETR Act that schools already comply with for the purposes of school registration.

Human Rights Issues

The human rights in the Charter that are relevant to the Bill are:

• the right to protection of children: section 17(2)

• the right to privacy: section 13(a)

• cultural rights: section 19

• the rights to liberty and security of person: section 21(1)

• the rights to recognition and equality before the law: section 8

• the right to protection from torture and cruel, inhuman or degrading treatment: section 10.

Protection of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. The right recognises the special vulnerability of children and the need to protect children from harm, safeguard their enjoyment of their human rights and promote their development. Children hold this right to special protection in addition to all other Charter rights.

The Bill promotes the protection of children, and their enjoyment of their human rights, by expanding the powers of the Authority to regulate school boarding premises, including to monitor providers of school boarding services to ensure they comply with the Victorian Child Safe Standards made under the Child Wellbeing and Safety Act 2005.

Clause 7 of the Bill inserts new Division 1A into the ETR Act which, among other things, requires the registration of school boarding premises with the Authority and enables regulations to prescribe minimum standards for registration. For a school boarding premises to be registered, the Authority must be satisfied that the provider of the school boarding services (provider) complies with prescribed minimum standards for registration, including standards relating to student welfare, governance and probity of the provider, managing risk of anaphylaxis and managing the risk of child abuse.

Clause 13 of the Bill inserts transitional provisions into the ETR Act requiring all providers at existing school boarding premises to provide a self-assessment of compliance with the prescribed minimum standards for registration and statutory declaration relating to the self-assessment within three months. Providers seeking to register new school boarding premises after commencement will need to submit evidence to demonstrate compliance with the prescribed minimum standards when applying for registration.

New Division 1A also provides the Authority with powers and sets out procedures for reviewing, monitoring and enforcing the compliance with the prescribed minimum standards. These include both general periodic reviews of the operation of school boarding premises and specific reviews at any time where the Authority believes on reasonable grounds that:

• there are matters concerning student safety at the premises that require the provider to take urgent action;

• the provider at a non-government school boarding premises is financially unviable or may soon become financially unviable; or

• exceptional circumstances exist at the premises that justify a specific review.

Where the Authority is satisfied that a provider or school boarding premises does not comply with a prescribed minimum standard for registration, the Authority is empowered to take action if satisfied that it is in the interests of the boarders at the premises or the public to do so, including:

• imposing conditions or interim conditions on registration

• prohibiting a school boarding premises from accepting new boarders

• requiring providers to report non-compliance to parents of boarders

• accepting enforceable undertakings from providers to remedy non-compliance; or suspending or cancelling the registration of the premises.

Accordingly, these amendments will increase the protection of Victorian children in school boarding premises by ensuring that the Child Safe Standards and other prescribed minimum standards for registration are satisfied at such premises. The Bill is intended to enable the Victorian Government to acquit recommendation 13.3 of the Royal Commission into the Institutional Responses to Child Sexual Abuse (Royal Commission), which is that school registration authorities should place particular emphasis on monitoring government and non-government boarding schools to ensure they meet the Child Safe Standards.

Additionally, by enforcing minimum standards for a child safe environment in school boarding facilities, the Bill will promote boarders’ other rights in the Charter, including the rights to equality (section 8), privacy (section 13), cultural rights (section 19) liberty and security of person (section 21) and the protection from cruel, inhuman or degrading treatment (section 10). A child safe environment encompasses matters relevant to these rights such as protection from child abuse (including from any acts of physical violence, serious emotional or psychological harm, and serious neglect) and making reasonable efforts to accommodate the diversity of all children.

Right to privacy

Section 13 of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. This right extends to privacy of information, including the right of an individual to participate in society without having their personal information collected. The right also includes a protection from interference in an individual’s home, their personal development and their social sphere, which encompasses interferences with a person’s education or place of residence. An interference with privacy is compatible with the Charter if it is clearly provided for by law and is not arbitrary, in the sense that the interference is reasonable and proportionate to a legitimate aim sought.

While the expansion of the Authority’s powers to regulate, monitor and enforce prescribed minimum standards in relation to school boarding premises is directed at safeguarding the safety and welfare of children, it may interfere with the privacy rights of people providing such services (although the provider will always be a body corporate which does not possess human rights). In my opinion, any such interferences, as discussed below, will be lawful and not arbitrary and so will be compatible with the Charter. The overall aim of these provisions is to safeguard the safety and welfare of boarders, which the Royal Commission found were at a heightened risk of abuse without adequate monitoring.

Provision of information

New section 4.3.8I empowers the Authority to require the provider, or any person involved in the management of the provider or the premises, to provide information about the management or operation of the provider or the premises, including producing records, as part of a review under new section 4.3.8G or 4.3.8H. This may include personal information to which the right to privacy attaches, for example, information about boarders at the premises. The Bill restricts the extent of this potential interference by requiring the Authority to give the provider or person written notice of the information it requires, which must be relevant to one or more of the prescribed minimum standards for registration.

New section 4.3.8T requires a provider to notify parents of boarders at a school boarding premises if the provider receives a notice of a determination of the Authority to suspend or cancel the registration of the premises or impose a condition on the registration of the premises. New section 4.3.8U provides the Authority may notify parents of these matters if the provider fails to do so. The reason for suspension, cancellation or imposition of a condition may relate to personal information to which the right to privacy attaches, for example, information about boarders at the premises.

I consider the provision of such information under new section 4.3.8I is necessary to facilitate the proper monitoring and enforcement of the minimum standards for registration. I consider that it is unlikely that the Authority will need to provide such information in a notice of determination or in a notice to parents. Further, any use or disclosure of such information by the Authority will be subject to the requirement to give proper consideration to the right to privacy under the Charter, as well as adhering to the Information Privacy Principles in the Privacy and Data Protection Act 2014 (for example, by de-identifying the personal information where the Authority does need to use that information).

Monitoring financial capability of providers at non-government school boarding premises

New section 4.3.8D provides that it is a condition of registration that any person involved in the management of the provider at a non-government school boarding premises or the operation of the premises must comply with requirements of the Authority for the purposes of monitoring or assessing the provider’s financial capabilities. New section 4.3.8E provides that if the Authority determines that a provider is, or is at risk of becoming, financially unviable, the Authority may report on this to the parents of boarders. While such monitoring and assessment powers are more likely to concern the financial affairs of entities which are not persons, it may interfere with the privacy rights of a person involved in the management of a provider or operation of a premises. However, any such interference will be reasonable and proportionate. The role of managing or operating a school boarding service attracts special responsibilities and duties, due to the fact that it involves the care of children who are likely to depend on the provider and staff for their needs to be met. Financial viability may affect the standard of the services or premises, and may pose a risk to the safety or welfare of boarders. Accordingly, a person electing to undertake the role of provider appropriately assumes an obligation to submit to monitoring and assessment of their financial capability, to ensure that the provider is financially viable and thus able to discharge their responsibilities for the care, safety and welfare of boarders at the premises.

Enforcement action

The Authority may take a range of compliance and enforcement actions in relation to a non-compliant school boarding premises, including prohibiting the provider from accepting new boarders and suspending or cancelling its registration. Such restrictions may disrupt the education or care arrangements of current or prospective boarders so as to interfere with their privacy, for example if a school boarding premises ceases to operate as a consequence of such action and boarders are required to vacate the premises.

However, in my view, such interference will not be arbitrary, as any such action can only be taken following a review and determination of the Authority that the provider or premises does not comply with the prescribed minimum standards for registration in accordance with the Bill, which includes providing procedural fairness to the provider of any proposed action. Further, before taking compliance or enforcement action, the Authority must be satisfied that such action is in the best interests of boarders or in the public interest. Finally, the Authority as a public authority under the Charter, when determining to take compliance or enforcement action against a provider, will have to give proper consideration to any potential limits on human rights, including that there are no less restrictive actions reasonably available to in the circumstances. Accordingly, in my opinion, any resulting compliance or enforcement action that may affect the privacy rights of boarders will be compatible with the right to privacy in the Charter.

Right of entry of authorised officers

Clause 11 of the Bill expands the existing powers of authorised officers under the ETR Act to apply to school boarding premises. Authorised officers may enter a boarding school premises between 7 am and 9 pm and may make inquiries, inspect or examine the attendance register, boarder location records and documents relating to the prescribed minimum standards for registration, and take copies or extracts from documents. While a power of entry to school boarding premises may be relevant to the right to privacy of boarders and staff, including privacy of the home, in my view, any interference will not be arbitrary.

The nature and extent of any interference will be low. Boarders and staff at the premises already have an expectation of reduced privacy because they are subject to the supervision of the provider and share the premises with each other, and the presence of an authorised officer at the premises is not likely to contribute materially to this. Further, the powers of authorised officers extend only to making inquiries and inspecting documents, and do not include powers to conduct a search of the premises or persons, or seize items. The inspection powers are necessary to monitor the compliance of a provider or premises with the prescribed minimum standards, which are directed at safeguarding the safety and welfare of students. In my view, effective monitoring is not possible without a power of entry and inspection. Accordingly, I am satisfied that this expanded power of authorised officers is compatible with the right to privacy.

The Hon. James Merlino MP

Minister for Education

Second reading

Mr MERLINO (Monbulk—Minister for Education) (10:39): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Objectives

This Bill amends the Education and Training Reform Act 2006 (the Education and Training Reform Act) to address issues identified by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) by:

• establishing a framework for registration and regulation of school boarding premises consistent with the framework for registration and regulation of schools in the Education and Training Reform Act; and

• clarifying the powers of the Victorian Registration and Qualifications Authority (Authority) to regulate compliance with the Victorian Child Safe Standards, made under Part 6 of the Child Wellbeing and Safety Act 2005 (CWS Act), in school boarding premises.

The Bill will clarify the powers of the Authority to regulate school boarding premises, to:

• increase the protection of Victorian children in school boarding premises by ensuring that the Child Safe Standards and other prescribed minimum standards for registration are satisfied in such premises; and

• enable the Victorian Government to acquit recommendation 13.3 of the Royal Commission, which recommended that school registration authorities should place particular emphasis on monitoring government and non-government boarding schools to ensure they meet the Child Safe Standards.

The Royal Commission’s final report (Final Report) was released on 15 December 2017, following a five-year inquiry. The Final Report identified a key risk area where children in boarding schools were over-represented in reports to the Royal Commission about sexual abuse. The proportion of people who informed the Commission about sexual abuse at a boarding school “was relatively large, given that only a small proportion of school children go to boarding school”.

The Royal Commission identified a number of situational factors placing boarders at higher risk of abuse, such as:

• the closed nature of boarding schools;

• the power imbalance between adults and children created by the dependence on adults of the children to meet their needs;

• the unsupervised contact with, and level of authority over the children; and

• the prioritisation of reputation over the risk of child sexual abuse.

The Authority’s legislative power to regulate school boarding facilities, including for compliance with the Child Safe Standards, is currently unclear. The lack of clarity is due to school boarding facilities not strictly fitting within the definition of “school” as currently defined in the Education and Training Reform Act.

While the Authority is a “relevant authority” for entities that operate residential facilities for boarding schools (as “relevant entities” for the purposes of the CWS Act) the Authority does not have explicit regulatory powers with respect to school boarding premises in the Education and Training Reform Act. Therefore the Authority does not currently regulate school boarding premises.

It is necessary to clarify the power of the Authority to regulate these premises to enable the Victorian Government to acquit recommendation 13.3 of the Royal Commission. The purpose of the proposed amendments is to ensure that school boarding premises, which have a primary purpose of enabling boarders to enrol at or attend school, are registered and regulated under the Education and Training Reform Act.

The proposed amendments are not expected to impose significant additional costs on schools or providers of school boarding services.

The identified affected schools have indicated their support for the proposed changes during initial consultation conducted during the development of the Bill.

Summary of Bill

The Bill establishes a framework for registration and regulation of school boarding premises consistent with the framework for registration and regulation of schools in the Education and Training Reform Act. The Bill will clarify and expand the powers of the Authority to regulate compliance with prescribed minimum standards for registration of school boarding premises, including with the Victorian Child Safe Standards (in accordance with a Ministerial Order for managing the risk of child abuse under the Education and Training Reform Act 2006).

Where appropriate and practicable, the Bill aligns with the existing requirements and review processes that schools already comply with for the purposes of school registration. It is intended that aligning with the existing provisions for schools will minimise any additional regulatory burden on schools with boarding premises.

The Bill applies to “school boarding premises”, which is defined to mean premises at which school boarding services are provided or intended to be provided for a fee or reward. The definition excludes private residences, students staying with family members, camps, hospital schools, respite care, homestay arrangements, and facilities that are already regulated for compliance with the Child Safe Standards. The Bill defines “school boarding services” as accommodation services provided for the primary purpose of enabling or facilitating a person to enrol at or attend a registered school.

The Bill contains prescribed minimum standards for registration and other registration requirements for providers of school boarding services that, where appropriate and practicable, are consistent with the existing standards and requirements for schools. Existing providers of school boarding services will be registered on commencement of the registration provisions in the Bill, and will remain registered provided they submit to the Authority a self-assessment and statutory declaration of compliance with the prescribed minimum standards within three months of commencement.

The Bill establishes an offence for a person to carry on or conduct an unregistered school boarding premises, with a maximum penalty of 10 penalty units. This aligns with the existing offence and maximum penalty in the Education and Training Reform Act for a person to carry on or conduct an unregistered school.

The prescribed minimum standards for registration of school boarding premises will generally be prescribed in the regulations. The Bill also contains prescribed minimum standards relating to discipline of boarders, managing the risk of anaphylaxis, and managing the risk of child abuse. The Bill refers to the prescribed minimum standards for registration which will be prescribed by the regulations, which will include standards relating to:

• acceptance policies;

• welfare of boarders;

• governance of the provider;

• probity of the provider and any person responsible for managing the premises; and

• processes for the review and evaluation of the premises and the school boarding services to be provided at the premises.

The Bill provides that the Authority may impose reasonable conditions on the registration of the school boarding premises to take effect for the whole or any part of the period of registration.

The Bill provides that it is a condition of registration of a non-government school boarding premises that the provider and any person involved in the management of the provider or the operation of the premises must comply with any requirements of the Authority for the purposes of monitoring or assessing the provider’s financial capabilities. The Bill also provides the Authority with powers to assess the financial capability of such a provider, including to take action where an assessment raises serious concerns about financial viability.

The Bill provides the Authority with power to undertake a general review or a specific review of compliance with the minimum standards for registration, aligning with existing arrangements for school reviews.

A general review may be conducted to determine whether:

• having regard to the prescribed minimum standards for registration, the provider of school boarding services has attained and continues to attain the standards; and

• the provider has complied with any condition of registration imposed by the Authority.

It is anticipated that general reviews will occur at the same time as associated registered schools are reviewed, which currently occurs on a five-year cyclical basis.

A specific review may be conducted to determine whether the provider of school boarding services has attained, and continues to attain, a prescribed minimum standard for registration if the Authority believes on reasonable grounds that:

• there are matters concerning the safety of students at the school boarding premises which require urgent action to be taken by the school boarding premises;

• in the case of non-government provider of school boarding services, whether it is financially unviable, or may soon become financially unviable; or

• exceptional circumstances exist at the school boarding premises which justify a specific review. Exceptional circumstances include, but are not limited to:

o serious non-compliance with a prescribed minimum standard for registration; and

o repeated non-compliance with a prescribed minimum standard for registration by the provider of school boarding services.

The Authority may satisfy itself whether or not the provider of school boarding services complies with the prescribed minimum standards for registration on the basis of:

• the conduct of a review and evaluation by the Authority; or

• a report from a person who provides school boarding services at the school boarding premises or, in the case of school boarding premises conducted by a registered Government school, from the Secretary to the Department of Education and Training; or

• a report of the conduct of a review and evaluation by a person or body approved by the Authority to review a school boarding premises or group of school boarding premises.

The Authority may require a person providing school boarding services at the school boarding premises (in writing) that is subject to a review or evaluation, or any person involved in the management or operation of the school boarding premises, to:

• provide to the Authority any information about the management of the provider or operation of the school boarding services relevant to one or more of the prescribed minimum standards for registration specified in the notice; or

• to produce to the Authority any records relevant to those matters that are specified in the notice and permit examination of the records and the making of copies of those records.

The Bill expands the powers of the Authority to respond to non-compliance with the minimum standards for registration, including:

• placing interim or longer term conditions on the registration of a school boarding premises;

• accepting undertaking from providers to address compliance issues;

• suspending or cancelling the registration of the premises; and

• notifying parents of boarders of a condition of registration, or suspension or cancellation of registration, if the provider fails to comply with an obligation to inform parents.

The Bill requires the Authority to give a provider an opportunity to make submissions about why a proposed condition, suspension or cancellation should not be imposed before the Authority takes any of these actions.

The Bill requires providers to provide reports to the Authority, containing information required by the regulations, in accordance with regulations. The regulations will require equivalent matters to the existing matters that schools are required to report on in accordance with regulation 71 of the Education and Training Reform Regulations 2017, namely information to show that, and enable the Authority to assess whether, the provider, premises and services continue to comply with:

• the prescribed minimum standards; and

• other requirements of the Education and Training Reform Act and regulations.

The Bill establishes an offence for wilfully providing false or misleading information in such a report, with a maximum penalty of 5 penalty units.

The Bill establishes an offence for a provider failing to ensure that a record is kept at a registered school boarding premises of the location of every boarder at the premises, with a maximum penalty of 5 penalty units.

The Bill requires the Authority to maintain a record of registered school boarding premises in a division of the State Register.

The Bill enables the Authority to issue guidelines in relation to the prescribed minimum standards for registration and conditions of registration, and assessing financial capability of providers of school boarding services at registered non-government school boarding premises.

The Bill allows a person to make a complaint to the Authority alleging that a provider of school boarding services has failed to comply with the Education and Training Reform Act, the regulations, a Ministerial Order or a condition of registration.

The Bill provides additional powers of entry for authorised officers in respect of school boarding premises, to enable authorised officers to obtain information relevant to the prescribed minimum standards for registration of a school boarding premises. The additional powers permit entry to registered school boarding premises between 7am and 9pm to enable authorised officers to:

• make inquiries;

• inspect the attendance register or location records; or

• inspect or copy documents relating to the prescribed minimum standards for registration.

The Bill also makes some minor and technical amendments the Education and Training Reform Act and the CWS Act, including amendments identified as part of the development of the Children’s Services Regulations 2020.

Proposed regulations which will prescribe the minimum standards for the registration of school boarding premises will be the subject of a regulatory impact statement which will be released for public consultation in mid to late 2020.

Conclusion

The proposed amendments are aimed at improving the protection of Victorian children in boarding premises by ensuring that the Child Safe Standards and other prescribed minimum standards for registration are satisfied in all school boarding services in Victoria.

I commend the Bill to the house.

Ms McLEISH (Eildon) (10:40): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 18 March.