NESA School Governance Compliance Requirements supporting the NSW Education Act 1990

Transcription

1 NESA Schl Gvernance Cmpliance Requirements supprting the NSW Educatin Act 1990 NSW Educatin Standards Authrity (NESA) Registratin Systems and Member Nn-gvernment Schls (NSW) Manual (Refer t Schl Gvernance Sectin 5.9 Management and peratin f the schl) Registratin Systems and Member Nn-gvernment Schls NSW Educatin Standards Registered and Accredited Individual Nn-gvernment Schls (NSW) Manual (Refer t Schl Gvernance Sectin 3.9 Management and peratin f the schl) Registered and Accredited Individual Nn-gvernment Schls NSW Educatin Standards Official Ntice: 2017 Amendments t Nn-gvernment Schl Registratin Manuals NSW Educatin Standards Certificatin f financial viability :: RANGS State NSW Educatin Act 1990 (last mdified 1 January 2017) EDUCATION ACT 1990 NSW Educatin Act 1990 Sectin 47 EDUCATION ACT SECT 47 Registratin requirements fr nn-gvernment schls NSW Educatin Act 1990 Sectin 83C EDUCATION ACT SECT 83C Financial assistance nt t be prvided t schls that perate fr prfit NSW Educatin Act 1990 Sectin 83L EDUCATION ACT SECT 83L Nt-fr-prfit guidelines NSW Nt-fr-prfit Guidelines fr nn-gvernment schls Nt-fr-Prfit Guidelines CECNSW cntact is Margaret O Cnnr, Accuntability and Cmpliance, (margaret.cnnr@cecnsw.cathlic.edu.au / ) 4 May 2017

2 NESA NSW Educatinal Standards Authrity s Schl Gvernance Cmpliance Requirements The January 2017 changes t NESA (frmerly BOSTES) registratin manuals include tw gvernance measures: Respnsible Persns must be a fit and prper persn rather than f gd character and a registered nn-gvernment schl must be financially viable. In additin t the gvernance measures NESA advises that the quality f teaching and learning will be assessed at the time f registratin (refer sectin 7.3 system schls and sectin 5.3 individual schls). NESA Manual/Act Gvernance Requirement Cmpliance Element Related 5.9 Schl Systems 3.9 Independent Schls /S47 NESA Management and peratin f the schl 10 NESA gvernance requirements 1. Register all Respnsible Persns wh must be a fit and prper persn 2. Prvide Prper Gvernance thrugh delegatin, supervisin and cde f cnduct 3. Recrd and adhere t plicies and prcedures 4. Register and avid Cnflicts f Interest 5. Operate n a Nt-fr-Prfit basis and register Related Party Transactins 6. Recrd and prvide nging prfessinal learning and gvernance training t Respnsible Persns 7. Recrd and prvide inductin and gvernance training t all new Respnsible Persns 8. Register annual independent audits f financial statements t Australian Accunting/Auditing Standards 9. Ntify BOSTES f change f character f Respnsible Persns, if schl mved r sld, f alleged breaches f law r bankruptcy. 10. A registered nn-gvernment schl must be financially viable and Wh is a Respnsible Persn? A Respnsible Persn fr a schl is: The prprietr f the schl, and if a crpratin then each directr r persn cncerned in the management f the schl Each member f the gverning bdy/bard f the schl 2

3 The principal f the schl and / S 56 and S 59 What is meant by a fit and prper Each Respnsible Persn and the gverning bdy f the schl must persn r gverning bdy? be a fit and prper persn and shuld avid the fllwing: having debts t any State/Territry gvernment r the Cmmnwealth being bankrupt, inslvent, subject t curt rders r external administratin; r a recrd f unsatisfactry financial management being cnvicted, r charged with, any ffence in relatin t children, dishnesty r vilence engaging in a deliberate pattern f cnduct f immral r unethical behaviur. 5 Year time frame f registratin During the past five years, the actins f a Respnsible Persn r a prpsed Respnsible Persn cannt cntribute twards the refusal r cancellatin f a schl registratin Nt-fr-Prfit status Nte: NESA manuals d nt specifically address the Nt-Fr-Prfit status f sme nn-gvernment schls. NESA manuals are applicable t bth nt-fr-prfit and fr prfit nn-gvernment schls. The NSW Educatin Act 83C and the ACNC Act Divisin 45 address the ntfr-prfit requirement fr registered schl charities and A registered nn-gvernment schl must have plicies and prcedures in place fr the prper gvernance f the schl Fr the vast majrity f schls nt perating fr prfit, the requirements f the Australian Charities and Nt-fr-prfits Cmmissin (ACNC) apply. ACNC sets ut five (5) gvernance standards fr the peratin f all Australian registered charities including Cathlic schls and systems f schls: Registered charities must be nt-fr-prfit and wrk twards their charitable purpse Registered charities must be accuntable t their members and allw cncerns t be raised Registered charities must nt cmmit a serius ffence (such as fraud) under any Australian law Respnsible Persns must be suitable and nt disqualified under Crpratins Law 2001 r by ACNC Duties f Respnsible Persns are understd and carried ut accrding t ACNC Standards. Schl plicies and prcedures include: a schl charter/cnstitutin setting ut the gvernance structure and rles and respnsibilities f each Respnsible Persn See ACNC Act 2012 and NSW Ed Act 1990 S83(c) fr Ntfr-prfit status and definitins 3

4 and Each Respnsible Persn must avid Cnflicts f Interest with the schl, their rle and decisins f the gverning bdy and / S 83C Related Party Transactins by the schl are examples f Cnflicts f Interest and must be managed respnsibly and transparently a delegatins schedule identifying the respective authrity f each rle in the gvernance structure; and prcedures fr withdrawal f a delegatin f authrity frm a Respnsible Persn a dcument f the supervisry and reprting arrangements fr each Respnsible Persn including the schl executive and gverning bdy/bard recrds f gvernance decisins including minutes f frmal meetings f the gverning bdy; t be kept 7 years minimum a dcument f the schl s legal cmpliance framewrk referencing relevant legislatin. This dcument is an example. a dcument f the schl s risk management framewrk and prcedures fr reviewing and mitigating risks t nn-cmpliance a register f the schl s Respnsible Persns; recrding within 28 days f when a persn cmmenced and ceased a rle; register t be kept 7 years minimum Schl plicies and prcedures fr dealing with Cnflicts f Interest: a plicy statement defining Cnflict f Interest in the schl cntext and measures t avid and mitigate a prcedure/register f annual declaratin by each Respnsible Persn f actual, perceived r ptential Cnflicts f Interest a prcedure and minutes f declaratins f Cnflicts f Interest in relatin t specific agenda items in frmal meetings Respnsible Persns must act t mitigate a Cnflict f Interest e.g. by absenting neself frm assciated decisin-making r advising retaining recrds f Cnflicts f Interest registers and minutes fr 7 years minimum A Related Party Transactin (RPT) is where a Respnsible Persn, acting n behalf f the nn-gvernment schl, prvides a financial r tangible benefit t a Related Party such as him/herself, spuse r relatives, friends, clse assciates r related rganisatins. The RPT may include a cash r in-kind payment in cnnectin t the supply f prperty, gds r services t r by the schl. A schl must have plicies and prcedures fr RPT: See NSW Educatin Act 83C and NSW NFP Guidelines fr mre detail n Related Parties 4

5 keep a register f all RPT where each Respnsible Persn disclses each RPT and recrds the degree f materiality. keep RPT register and recrds fr 7 years minimum. arrange an annual external audit f the RPT register and / S47 Prfessinal Learning fr Respnsible Persns ntify NESA when a cntract with an external auditr f RPT is terminated befre the expiry date and the reasns fr early terminatin. Prper Gvernance requires the schl t ensure that all Respnsible Persns have relevant qualificatins, skills and experience fr gverning the schl. A schl must have plicies and prcedures fr prfessinal learning: keep a register f prfessinal learning fr all Respnsible Persns including pre-existing qualificatins and prfessinal experience. Keep prfessinal learning register fr 7 years minimum. Ensure each Respnsible Persn cmpletes the 12 hurs f mandatry gvernance training in each 3 year perid (r 4 hurs per year). Gvernance prfessinal learning must include a schl cntext and be delivered by a NESA apprved training prvider. Onging prfessinal learning must be relevant t the develpment f the Respnsible Persn in relatin t their rle e.g. educatin, leadership, finance, cmpliance, risk management and Inductin Prcess fr new Respnsible Persns Includes mandatry gvernance training Prper Gvernance requires that all new Respnsible Persns taking up a respnsible psitin in the schl shuld be fully infrmed f the 5

6 situatin at the schl and receive prmpt schl-based inductin including mandatry gvernance training. Respnsible Persns in Acting Psitins shuld undertake 4 hurs f gvernance training when the Acting Psitin is lnger than 3 mnths and External independent attestatin audit f annual financial statements NSWDE requires State Per Capita funds t be audited by an ASIC registered accuntant/auditr A schl must have plicies and prcedures fr inductin: keep a register f schl-based inductin fr all Respnsible Persns including mandatry gvernance training within 3 mnths f taking up the respnsible psitin Keep inductin register fr 7 years minimum including: Qualificatins and experience relevant t the rle Details f cmpletin f gvernance training Acknwledgement f receipt f dcuments. Ensure each new Respnsible Persn receives cpies f dcuments listed in that is: Schl charter, gvernance structure, rles f Respnsible Persns, delegatins schedule, supervisry arrangements, reprting requirements, cde f cnduct f Respnsible Persns, legal cmpliance framewrk, risk management framewrk, Mst recent audited financial statements f the schl Recent minutes f meetings/decisins f Respnsible Persns Prper gvernance requires the schl s annual financial accunts t be audited and certified by an external independent auditr. The schl prprietr must prvide evidence that the annual audit and certificate: Are cmpleted by a qualified accuntant recgnised by CPA Australia, Institute f Chartered Accuntants r Institute f Public Accuntants Cmply with Cmmnwealth and NSW Gvernment requirements (Australian Accunting/Auditing Standards) Nt cmpleted by a persn/bdy with whm the schl has anther business relatinship in additin t audit services Crpratins Law

7 Nt cmpleted by a persn/bdy with whm any Respnsible Persn f the schl has a Cnflict f Interest and 3.9.4/S47 Financial Viability New requirement in and /S63A NESA must be ntified f certain matters Keep annual audit register and recrds fr 7 years minimum. Ntify NESA when a cntract with an external auditr is terminated befre the expiry date and the reasns fr early terminatin. A registered nn-gvernment schl must be financially viable The prprietr f a systemic nn-gvernment schl is required t maintain evidence t demnstrate the current financial viability f the schl at the time f making an applicatin fr initial r renewed registratin. The evidence f financial viability is prescribed by NESA and is t be in the frm f a certificatin r warrant by the registratin system r anther bdy r persn apprved by NESA fr that purpse. The prprietr f a systemic nn-gvernment schl is required t maintain evidence relating t the member schls f the registratin system f either a: Certificatin f Financial Viability frm the registratin system authrity r anther NESA apprved bdy r persn assessed against the NESA Financial Viability Framewrk, r a Financial Viability Warrant frm the registratin system authrity r anther NESA apprved bdy r persn prviding assurance f financial viability. The NESA Certificatin f Financial Viability, Financial Viability Framewrk and the Financial Viability Warrant are published n the NESA registratin website Certificatin f financial viability :: RANGS NESA, and at least ne ther Respnsible Persn f the schl, must be ntified as sn as practicable when a Respnsible Persn f the schl: Is cnvicted f an ffence punishable by imprisnment f 12 mnths r mre Becmes bankrupt r inslvent r takes illicit benefit 7

8 If the persn is a crpratin and is subject t winding up r a cntrller r administratr has been appinted Becmes mentally incapacitated As a patient at an institutin fr that incapacity As a prtected persn under the NSW Trustee and Guardian Act 2009 The schl prprietr and/r the principal must ntify NESA when the schl is mved r sld. 3 mnths prir relcatin 7 days prir cmpletin f sale The Apprved Authrity fr a system f nn-gvernment schls must prvide NESA with infrmatin cncerning the registratin f each schl, in a frm, and at the times, apprved by NESA fr that purpse. State NSW Educatin Act 1990 (amended) Sectin 47, Sectin 83C and the NSW Nt-fr-prfit Guidelines (Sept 2015) NSW Educatin Act Gvernance Requirement Cmpliance Element Related Sectin 47 Part 7, S47 Registratin requirements fr nn-gvernment schls S47 Minister sets ut the cnditins fr registratin f schls in rder t receive recurrent funding T be a registered nn-gvernment schl in NSW: (a) schl must be a crpratin r anther legal entity apprved by the Minister (b) each Respnsible Persn fr the schl must be f gd character (b1) plicies and prcedures (p&p) fr prper gvernance f the schl are in place (c) any refusal/cancellatin f registratin in the past 5 years is nt attributable t the actins/intentins f the schl s Respnsible Persns 8

9 (d) teaching staff fr the schl have the necessary experience and qualificatins (having regard t accreditatin under the Teacher Accreditatin Act 2004) (e) educatinal facilities are adequate fr the curses f study prvided at the schl (f) schl premises and buildings are satisfactry (g) a safe and supprtive envirnment is prvided fr students: (i) schl p&p prvide fr the welfare f students, and (ii) persns wh are emplyed at the schl are emplyed in accrdance with Part 2 f the Child Prtectin (Wrking with Children) Act 2012, and (iii) schl p&p ensure cmpliance with Part 3A f the Ombudsman Act 1974 and the Child Prtectin (Wrking with Children) Act 2012, and (iv) student enrlment and attendance registers are maintained. (h) schl plicies relating t discipline f students attending the schl are based n principles f prcedural fairness, and d nt permit crpral punishment f students (i) if the schl prvides barding facilities, whether itself r by cntractual arrangement-the schl p&p ensure the safety and welfare f barders (j) cmpliance with the requirements set ut in Part 3 relating t prviding the minimum curriculum fr each level f schling, be it Primary Fundatin t Year 6, Secndary Years 7-10 r fr candidates f the Higher schl Certificate, Years (k) schl p&p are apprpriate t ensure the persnal and scial develpment f students undertaking distance educatin, fr all r part f their curses f study (l) schl p&p ensure its participatin in annual reprting (f a kind determined by the Minister): (i) t publicly disclse the educatinal and financial perfrmance measures and plicies f the schl, and (ii) t prvide data t the Minister that is relevant t the 9

10 Sectin 83C / NFP Financial assistance nt t be prvided t schls that perate fr prfit Minister's annual reprt t Parliament n the effectiveness f schling in the State. ) (1) The Minister must nt prvide financial assistance t r fr the benefit f a schl that perates fr prfit. ) (2) A schl perates fr prfit if the Minister is satisfied that: (a) any part f its prprietr s schl assets r schl incme is used fr any purpse ther than fr the peratin f the schl, r (b) any payment is made by the schl t a related entity r ther persn r bdy: (i) fr prperty, gds r services at mre than reasnable market value, r (ii) fr prperty, gds r services that are nt required fr the peratin f the schl, r (iii) fr prperty, gds r services that is in any ther way unreasnable in the circumstances having regard t the fact that financial assistance is prvided t r fr the benefit f the schl by the Minister, r (c) any payment is made by the schl t a persn in cnnectin with the persn s activities as a member f the gverning bdy f the schl unless it is in reimbursement fr a payment made by the persn in cnnectin with the peratin f the schl. ) (3) The regulatins may specify whether r nt a schl perates fr prfit because f any particular use f assets r incme, any particular payment in relatin t the schl r any ther matter. ) (4) The Minister is nt bliged t terminate the prvisin f financial assistance if, fllwing an investigatin under this Divisin, the Minister is satisfied that: (a) terminatin f financial assistance is nt justified because f the minr nature f the relevant cnduct, r (b) mre apprpriate actin can be taken under sectin 83E. 10